15-027 Anderson's Tree Care Specialist Inc for maintenance at Blackberry Farm Picnic Area AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ANDERSON'S TREE
CARE SPECIALISTS, INC. FOR TREE MAINTENANCE AT BLACKBERRY FARMS
PICNIC AREA
THIS AGREEMENT, for reference dated March 10, 2015, is by and between CITY
OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and
, Anderson Tree Care Specialists, Inc., a California corporation whose address is P.O.
-Box 2B San Jose CA, 95109 hereinafter called the Contractor, and is made with reference
to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the Constitution and the statutes of the State of California and
the Cupertino Municipal Code.
B. City and Contractor desire to enter into an agreement for
Removal of two (2) Hazard Monterey Pine trees , and canopy cleaning of twelve (12)
Monterey Pine trees in therg_oup picnic area behind the Blackberry cafe snack shack in
accordance with Proposal #2235 dated March 9, 2015
NOW, THEREFORE, it is mutually :agreed by and between the undersigned
parties as follows:
1. TERM:
The Contractor shall begin work within Thirty (30) calendar days after receiving
notice from the Trees and R.O.W. Supervisor to commence the work, and shall
diligently prosecute the work to completion before the expiration of Thirty (30)
consecutive calendar days from the date of receipt of notice to begin work or June 30,
2015.
2. SERVICES TO BE PERFORMED:
Contractor agrees, at its own cost and expense, to furnish all labor, tools,
equipment, materials, except as otherwise specified, and to do all work strictly in
accordance with Proposal #2235 dated March 9,2015 hereby referred to and expressly
made a part hereof with the same force and effect as if the same were fully incorporated
herein.
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3. COMPENSATION TO CONTRACTOR:
Contractor shall be compensated for services performed pursuant to this
Agreement in the amount and manner set forth in Contractor's proposal, which is
attached hereto as Exhibit "A" and incorporated herein by this reference. Payment will
be made in the same manner that claims of a like character are paid by the City, with
checks drawn on the treasury of the City, to be taken from the Neighborhood Parks
fund (100-84-813-700-702). Total compensation under this Agreement shall not exceed
eighteen thousand seven hundred and twenty dollars ($18,720.00).
4. TIME IS OF THE ESSENCE:
Contractor and City agree that time is of the essence regarding the performance
of this Agreement.
5. STANDARD OF CARE:
Contractor agrees to perform all services hereunder in a manner commensurate
with the prevailing standards of like professionals in the San Francisco Bay Area and
agrees that all services shall be performed by qualified and experienced personnel who
are not employed by the City nor have any contractual relationship with City.
6. INDEPENDENT PARTIES:
City and Contractor intend that the relationship between them created by this
Agreement is that of an independent contractor. The manner and means of conducting
the work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the express terms of this Agreement. No civil service
status or other right of employment will be acquired by virtue of Contractor's services.
None of the benefits provided by City to its employees, including but not limited to
unemployment insurance, workers' compensation plans, vacation and sick leave are
available from City to Contractor, its employees or agents. Deductions shall not be
made for any state or federal taxes, FICA payments, PERS payments, or other purposes
normally associated with an employer-employee relationship from any fees due
Contractor. Payments of the above items, if required, are the responsibility of
Contractor.
7. IMMIGRATION REFORM AND CONTROL ACT (IBCA):
Contractor assumes any and all responsibility for verifying the identity and
employment authorization of all of its employees performing work hereunder,
pursuant to all applicable IRCA or other federal, or state rules and regulations.
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Contractor shall indemnify and hold City harmless from and against any loss, damage,
liability, costs or expenses arising from any noncompliance of this provision by
Contractor.
8. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Contractor agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Contractor or Contractor's employee on the basis of race, religious creed, color, national
origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual
orientation will not be tolerated. Contractor agrees that any and all violations of this
provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
Contractor shall, to the fullest extent allowed by law, indemnify, defend, and
hold harmless the City and its officers, officials, agents, employees and volunteers
against any and all liability, claims, stop notices, actions, causes of action or demands
whatsoever from and against any of them, including any injury to or death of any
person or damage to property or other liability of any nature, arising out of, pertaining
to, or related to the performance of this Agreement by Contractor or Contractor's
employees, officers, officials, agents or independent contractors. Contractor shall not be
obligated under this Agreement to indemnify City to the extent that the damage is
caused by the sole or active negligence or willful misconduct of City, its agents or
employees. Such costs and expenses shall include reasonable attorneys' fees of counsel
of City's choice, expert fees and all other costs and fees of litigation.
Contractor agrees to obtain executed indemnity agreements with provisions
identical to those set forth here in these sections from each and every subcontractor or
any other person or entity involved by, for, with, or on behalf of Contractor in the
performance of this agreement. If Contractor fails to obtain such indemnity obligations
from others as required here, Contractor agrees to be fully responsible according to the
terms of this section.
10. INSURANCE:
On or before the commencement of the terms of this Agreement, Contractor shall
furnish City with certificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance coverage in compliance with
paragraphs 10A, B, C and D. Such certificates, which do not limit Contractor's
indemnification, shall also contain substantially the following statement: "Should any
of the above insurance .covered by this certificate be canceled or coverage reduced
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before the expiration date thereof, the insurer affording coverage shall provide thirty
(30) days' advance written notice to the City of Cupertino by certified mail, "Attention:
City Manager." It is agreed that Contractor shall maintain in force at all times
during the performance of this Agreement all appropriate coverage of insurance
required by this Agreement with an insurance company that is acceptable to City and
licensed to do insurance business in the State of California. Endorsements naming the
City as additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Contractor shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabili
Commercial general liability coverage in the following minimum
limits:
Bodily Injury: $1,000,000
each occurrence
$2,000,000
aggregate- all other
Property Damage: $500,000 each occurrence
$1,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in
the amounts of $2,000,000 will be considered 'equivalent to the
required minimum limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the
following minimum limits:
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence
or
Combined Single Limit: $1,000,000 each occurrence
B. SUBROGATION WAIVER:
Contractor agrees that in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general and automotive liability insurance,
Contractor shall look solely to its insurance for recovery. Contractor hereby grants to
City, on behalf of any insurer providing comprehensive general and automotive
liability insurance to either Contractor or City with respect to the services of Contractor
herein, a waiver of any right to subrogation which any such insurer of said Contractor
may acquire against City by virtue of the payment of any loss under such insurance.
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C. FAILURE TO SECURE:
If Contractor at any time during the term hereof should fail to secure or maintain
the foregoing insurance, City shall be permitted to obtain such insurance in the
Contractor's name or as an agent of the Contractor and shall be compensated by the
Contractor for the costs of the insurance premiums at the maximum rate permitted by
law and computed from the date written notice is received that the premiums have not
been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees, and
volunteers shall be named as an additional insured under all insurance coverages,
except worker's compensation insurance. The naming of an additional insured shall
not affect any recovery to which such additional insured would be entitled under this
policy if not named as such additional insured. An additional insured named herein
shall not be held liable for any premium, deductible portion of any loss, or expense of
any nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss or
expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to
protect Contractor. Contractor is advised to consult Contractor's insurance broker to
determine adequate coverage for Contractor.
11. BONDS:
Contractor is not required to provide bonds.
12. PROHIBITION AGAINST TRANSFERS:
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or
any interest therein, directly or indirectly, by operation of law or otherwise, without
prior written consent of City. Any attempt to do so without said consent shall be null
and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right
or interest by reason of such attempted assignment, hypothecation or transfer.
However, claims for money by Contractor from City under this Agreement may be
assigned to a bank, trust company or other financial institution without prior written
consent. Written notice of such assignment shall be promptly furnished to City by
Contractor.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Contractor, or of the interest of any general partner or joint
venturer or syndicate member or cotenant, if Contractor is a partnership or joint
venture or syndicate or cotenancy, which shall result in changing the control of
Contractor, shall be construed as an assignment of this Agreement. Control means fifty
5
percent (50%) or more of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names are listed in Contractor's proposal shall be used in the
performance of this Agreement.
Requests for additional subcontracting shall be submitted in writing, describing
the scope of work to be subcontracted and the name of the proposed subcontractor.
Such request shall set forth the total price or hourly rates used in preparing estimated
costs for the subcontractor's services. Approval of the subcontractor may, at the option
of City, be issued in the form of a Work Order.
In the event that Contractor employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required
to carry general and automobile liability insurance in reasonable conformity to the
insurance carried by Contractor. In addition, any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
14. PERMITS AND LICENSES:
Contractor, at its sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate permits, certificates and licenses, including a City Business
License, that may be required in connection with the performance of services
hereunder.
15. REPORTS:
Each and every report, draft, work product, map, record and other document
reproduced, prepared or caused to be prepared by Contractor pursuant to or in
connection with this Agreement shall be the exclusive property of City. Consultant may
retain a copy of any report furnished to the City pursuant to this Agreement. ,
No report, information nor other data given to or prepared or assembled by
Contractor pursuant to this Agreement shall be made available to any individual or
organization by Contractor without prior approval by City.
Contractor shall, at such time and in such form as City may require, furnish
reports concerning the status of services required under this Agreement.
16. RECORDS:
Contractor shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts and other such information required by City that relate to the
performance of services under this Agreement.
Contractor shall maintain adequate records of services provided in sufficient
detail to permit an evaluation of services. All such records shall be maintained in
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accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Contractor shall provide free access to such books and records
to the representatives of City or its designees at all proper times, and gives City the
right to examine and audit same, and to make transcripts therefrom as necessary, and to
allow inspection of all work, data, documents, proceedings and activities related to this
Agreement. Such records, together with supporting documents, shall be kept separate
from other documents and records and shall be maintained for a period of three (3)
years after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of. records, and the City's
supplemental examination or audit of the records discloses a failure to adhere to
appropriate internal financial controls, or other breach of contract or failure to act in
good faith, then Contractor shall reimburse City for all reasonable costs and expenses
associated with the supplemental examination or audit.
17. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement
shall be given in writing and conclusively shall be deemed served when delivered
personally or on the second business day after the deposit thereof in the United States
Mail, postage prepaid, registered or certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Contractor to City shall be
addressed to City at:
City of Cupertino
10555 Mary Avenue
Cupertino CA 95014
Attention:Jonathan Ferrante
All notices, demands, requests, or approvals from City to Contractor shall be
addressed to Contractor at:
Anderson's Tree Care Specialists Inc.
P.O. Box 2B San Jose, CA 95019-0002
Attention: Doug Anderson
18. URBAN RUNOFF MANAGEMENT:
The Contractor shall avoid creating excess dust when breaking asphalt or
concrete and during excavation and grading. If water is used for dust control,
contractor shall use as little as necessary. Contractor shall take all steps necessary to
keep wash water out of the streets, gutters and storm drains.
The Contractor shall develop and implement erosion and sediment control to
prevent pollution of storm drains. Such control includes but is not limited to:
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A. Use storm drain inlet protection devices such as sand bag barriers, filter
fabric fences, block and gravel filters. (Block storm drain inlets prior to the start of the
rainy season (October 15), in site de-watering activities and saw-cutting activities;
shovel or vacuum saw-cut slurry and remove from the site).
B. Cover exposed piles of soil or construction material with plastic sheeting.
All construction materials must be stored in containers.
C. Sweep and remove all materials from paved surfaces that drain to streets,
gutters and storm drains prior to rain as well as at the end of the each work day. At the
completion of the project, the street shall be washed and the wash water shall be
collected and disposed of offsite in an appropriate location.
D. After breaking old pavement, Contractor shall remove all debris to avoid
contact with rainfall or runoff.
E. Contractor shall maintain a clean work area by removing trash, litter, and
debris at the end of each work day. Contractor shall also clean up any leaks, drips, and
other spills as they occur.
The objective is to ensure that the City and County of Santa Clara County-Wide
Clean Water Program is adequately enforced. These controls should be implemented
prior to the start of construction, up-graded as required, maintained during
construction phases to provide adequate protection, and removed at the end of
construction.
. These recommendations are intended to be used in conjunction with the States
Best Management Practices Municipal and Construction Handbooks, local program
guidance materials from municipalities, Section 7.1.01 of the Standard Specifications
and any other appropriate documents on storm water quality controls for construction.
Failure to comply with this program will result in the issuance of noncompliance
notices, citations, project stop orders or fines. The fine for noncompliance of the above
program is two hundred and fifty dollars ($250.00) per occurrence per day. The State
under the Federal Clean Water Act can also impose a fine on the contractor, pursuant to
Cal. Water Code '13385.
19. TERMINATION:
In the event Contractor fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, Contractor shall be deemed in default
in the performance of this Agreement. If such default is not cured within a period of
two (2) days after receipt by Contractor from City of written notice of default,
specifying the nature of such default.and the steps necessary to cure such default, City
may terminate the Agreement forthwith by giving to the Contractor written notice
thereof.
City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving seven (7) days' prior written notice to Contractor as provided
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herein. Upon termination of this Agreement, each party shall pay to the other party
that portion of compensation specified in this Agreement that is earned and unpaid
prior to the effective date of termination.
20. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules
and regulations enacted or issued by City.
a. Prevailing Wage: Contractor shall comply with all applicable
requirements set forth in Labor Code section 1770 et seq., including the
payment prevailing wages. Consultant will submit monthly certified
payroll records to the City for all employees and subcontractors in a
preapproved format or a City provided form. Any delay in remitting
certified payroll reports to the City upon request from the City will result
in either delay and/or forfeit of outstanding payment to Consultant.
b. Working hours: Contractor shall comply with California Labor Code
Section 1810, et seq. which provides that work performed by employees of
consultant in excess of 8 hours per day, and 40 hours during any one
week, must be compensated as overtime, at not less than 1 1/z times the
basic rate of pay. Consultant shall comply with California Labor Code
Section 1777.5 regarding apprentices.
c. Payroll records: Contractor shall comply with California Labor Code
Section 1776 which requires certified payroll records be maintained with
the name, address, social security number, work classification, straight
time and overtime hours worked each day and week, and the actual per
diem wages paid to each journeyman, apprentice, worker, or other
employee employed by him or her in connection with this
Agreement. The Payroll Records shall be made available for inspection as
provided in California Labor Code Section 1776.
21. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State
of California excepting any choice of law rules which may direct the application of laws
of another jurisdiction. The Agreement and obligations of the parties are subject to all
valid laws, orders, rules, and regulations of the authorities having jurisdiction over this
Agreement(or the successors of those authorities.) Any suits brought pursuant to
this Agreement shall be filed with the courts of the County of Santa Clara, State of
California.
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12. ADVERTISEMENT:
Contractor shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any kind
pertaining to the services performed under this Agreement unless prior written
approval has been secured from City to do otherwise.
23. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained
herein, shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained herein, whether of the same or a different
character.
24. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereof. Any modification of this
Agreement will be effective only by written execution signed by both City and
Contractor.
25. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement
shall be deemed to be enacted herein, and the Agreement shall be read and enforced as
though each were included herein. If through mistake or otherwise, any such provision
is not inserted or is not correctly inserted, the Agreement shall be amended to make
such insertion on application by either party.
26. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit or amplify the terms or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed
on the day and year first above written.
CONTRACTOR CITY OF CUPERTINO
Anderson's Tree Care Specialists Inc. A Municipal Corporation
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Date Date a /J
RECO�DDEDR APPROVAL:
By
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APPROVED AS TO FORM:
By
City Attorney
ATTEST:
1
City Clerk
Contract Amount: $18,720.00
Account:100-84-813-700-702
11
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Pd Box 26 'San ,Jose. CA 95109-0002
Tel; (4CO) 22"733
WMrqW Fax: (409) 281-8733
Ucwse 0705171
Tree are
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PROPOSAL: 03109/2015 #2235 Sales Arborist: Doug Anderson
City of Cupertino Contact Information Site Information
10555 Mary Ave Phone: 408 777 3343 Name: Blackberry Farm
Cupertino, California 95014 Email: JonathanF@cupertino.org 21979 San Fernando Ave
Cupertino, CA 95014
Service# Service Description Asset(s) Price
1 Remove Tree(s) #252 Pine, Monterey $6240.00
Location: Along main pathway
Safely remove the tree(s)as close to grade #253 Pine, Monterey
level as practical. Remove resulting debris. Location: Along main pathway
2 Stump Grinding (Big Grinder) #252 Pine, Monterey $960.00
Location: Along main pathway
Grind stump below surface to a depth of 20- #253 Pine, Monterey
24 inches or until woody stump material is Location: Along main pathway
removed. Spread excess grindings adjacent
to stump site.
3 Clean Canopy #263 Cedar, Deodar $11520.00
Location: Along main pathway
Prune 12 trees to remove dead wood #297 Pine, Monterey
greater than one inch in diameter. Reduce Location: Group picnic area
heavy or lengthy limbs over walkways by #312 Pine, Monterey
25%to minimize failure potential. Raise
canopies to 10 feet over walkways. Location: Group picnic area
#314 Pine, Monterey
Location: Group picnic area
#315 Pine, Monterey
#336 Pine, Monterey
Location: Group picnic area
#338 Pine, Monterey
Location: Group picnic area
#361 Pine, Monterey
Location: Group picnic area
#362 Pine, Monterey
Location: Group picnic area
#363 Pine, Monterey
Location: Group picnic area
#364 Pine, Monterey
Location: Group picnic area
Service# Service Description Asset(s) Price
3
#365 Pine, Monterey
Location: Group picnic area
Subtotal: $18720.00
Tax: $0.00
Total Price: - $18720.00
Customer Signature Date
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