19-174 Amendment #1 dated 6-13-22 for On call arborist1
FIRST AMENDMENT TO AGREEMENT 19-174
BETWEEN THE CITY OF CUPERTINO AND
HORTSCIENCE | BARTLETT CONSULTING FOR ON
CALL ARBORIST
This First Amendment to Agreement 19-174 between the City of Cupertino and HortScience |
Bartlett Consulting is by and between the City of Cupertino, a municipal corporation (hereinafter
"City") and Hortscience | Bartlett Consulting, a corporation (“Contractor”) whose address is 325 Ray
Street, Pleasanton, CA 94566, 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. 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, 2024 ("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. 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 $52,435 ("Contract Price"), based upon the Scope of Services in
Exhibit A 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.
2
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 to the Agreement is replaced with Exhibit A-1, 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.
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
Matthew Farin
Executive Vice President
Jun 13, 2022
Christopher D. Jensen
Director of Community Development
Jun 13, 2022
Jun 13, 2022
3
EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base $30,000
1st Amendment $22,435
Total $52,435
HortScience│Bartlett Consulting ● Divisions of The F.A. Bartlett Tree Expert Company
325 Ray St. Pleasanton, CA 925.484.0211 ● www.hortscience.com
Exhibit A-1
Proposal to Provide Arboricultural Consulting
Services
DATE:
PREPARED FOR:
SUBJECT:
MAY 27, 2022
City of Cupertino
10300 Torre Ave
Cupertino, CA 95014
Terms + Budget Amendment
The City of Cupertino asked that HortScience | Bartlett Consulting (HBC), Divisions of the F. A.
Bartlett Tree Expert Co., provide a proposal for preparing an Arborist Report letter. The scope
of services and related fees are described below.
Scope of Services
1. Review the tree removal application provided by the City of Cupertino.
2. Appraise the value of one tree using the methods described in Guide for Plant Appraisal,
10th Ed., International Society of Arboriculture, 2018.
Deliverables:
3. Compile the above information into an Arborist Report letter.
HortScience | Bartlett Consulting’s services for the scope described above will be considered
completed upon delivery of the final Arborist Report letter. Additional services will be provided
upon request and approval of related fees.
Fees
The above services shall be provided on an hourly basis, portal to portal from Pleasanton, at the
rates below. Mileage shall be reimbursed at the latest published IRS rate, currently $0.585 per
mile (from Pleasanton). If enrollment with a third-party vendor credentialing service is required,
the cost will be added to the proposal amount. The invoice for the current monitoring event and
subsequent report will be delivered to the client monthly. Payment is due within 30 days of date of
invoice
The fee to provide the above services shall not exceed $2,435.
Fees FY 22-23 and FY 23-24
The fee to provide the above services shall not exceed $20,000.
Additional Services and Fees:
If enrollment with a third-party vendor credentialing service is required, the cost will be added to
the proposal amount. Invoice shall be submitted to the client upon completion of the services
listed above. Payment is due within 30 days of date of invoice.
Additional work such as revisions to a report to respond to plan changes, meetings, or attendance
at hearings, shall be billed at the following hourly rates upon approval by the client:
Managing Consultants $240.00
Consultants $200.00
Arborist $180.00
CAD/GIS Specialist $180.00
Administrative Assistant $80.00
HortScience│Bartlett Consulting ● Divisions of The F.A. Bartlett Tree Expert Company
325 Ray St. Pleasanton, CA 925.484.0211 ● www.hortscience.com
Proposal, EAH housing Page 2
June 2, 2022
Conditions of Proposal
The terms of this proposal shall remain in effect for a period of 45 days.
The client must inform HortScience | Bartlett Consulting of any additional requirements, including
all insurance requirements such as requests for Certificates of Insurance or specific terms and
conditions, which may affect the pricing of this proposal and the work. In the event that additional
requirements do affect the costs associated with performance, HortScience | Bartlett Consulting
reserves the right to reissue a new proposal with revised pricing for acceptance.
Additional General Terms
After reviewing the additional general terms provided with this proposal, which are part of this
agreement, please sign and return a copy. In the event that the client should issue additional
work authorization terms, if agreed upon, such terms will be incorporated into this agreement. In
the event that such terms conflict with this agreement, then the terms of this agreement shall
govern over any conflicting language.
Approval
The undersigned agree to the terms and conditions of this proposal and additional
general terms.
City of Cupertino HortScience | Bartlett Consulting
5/13/2022
Date Ryan Suttle Date
The F.A. Bartlett Tree Expert Company ● Page 3
General Terms for Commercial Consulting Services
The F.A. Bartlett Tree Expert Company (“Bartlett Tree Experts”) provides tree-care and related consulting services to
commercial and government clients. The agreed upon “Work” has been expressed in a separate Client Agreement between
Bartlett Tree Experts and the Client, and is identified within the portion of the Client Agreement communicating the Scope of the
Work, the Goals, the Specifications, the Schedule of the Work, and the Payment Terms. These general terms combine with the
approved Client Agreement and form the complete agreement between the parties.
Article 1
TREE RISK
1.1 Tree Risk
(a) The Client acknowledges that having trees on one’s property involves risk, including the risk that a tree or tree limb
might fall. As part of the Work, Bartlett Tree Experts may recognize the risk posed by failure of trees within the
Scope of Work and recommend to the Client ways to reduce that risk, but the Client acknowledges that Bartlett Tree
Experts cannot detect all defects and other conditions that present the risk of tree failure and cannot predict how all
trees will respond to future events and circumstances. Trees can fail unpredictably, even if no defects or other
conditions are apparent. Bartlett Tree Experts will not be responsible for damages caused by subsequent failure of a
tree, or tree part, within or around the Scope of Work due to defects or other preexisting structural or health
conditions.
(b) Unless the Work includes having Bartlett Tree Experts perform a tree risk assessment for designated trees, the
Client acknowledges that in performing the Work Bartlett Tree Experts is not required to inspect and report to the
Client on risks to, and risks posed by, trees on or near the Client’s property.
(c) The Client also acknowledges that because trees are living organisms that change over time, the best protection
against the risk associated with having trees on the Client’s property is for the Client to arrange to have them
inspected by a qualified arborist annually and after each major weather event to identify any defects or other
conditions that present the risk of tree failure. Then, once inspected, the Client should review any possible defects
or conditions that present the risk of failure and request recommendations for, and implement, remedial actions to
mitigate the risks.
Article 2
THE WORK
2.1 Ownership
The Client states that all trees and other vegetation within the Scope of Work are owned by the Client or that the
Owner has authorized the Client to include them within the Scope of Work.
2.2 Specified Trees or Work
The specific trees, shrubs, plant materials or work described in the Scope of Work or in the Agreement will be the
only trees, shrubs, plant materials, or work included in the scope of the consultative services or Work performed by
Bartlett for the Client.
2.3 Insurance
(a) Bartlett Tree Experts states that it is insured for liability resulting from injury to persons or damage to property while
performing the Work and that its employees are covered under workers’ compensation laws.
(b) The scope of ongoing operations of the Work shall be defined as beginning when the performance on the site
begins and ending when the performance on the site concludes.
2.4 Compliance
Bartlett Tree Experts shall perform the Work competently and in compliance with the law and industry standards,
including the American National Standards Institute’s A-300 Standards for tree care.
2.5 Access Over Roads, Driveways, and Walkways
The Client shall arrange for Bartlett Tree Experts’ representatives, vehicles, and equipment to have access during
working hours to areas where the Work is to be performed. The Client shall keep roads, driveways, and walkways
in those areas clear during working hours for the passage and parking of vehicles and equipment. Unless the Client
Agreement states otherwise, Bartlett Tree Experts is not required to keep gates closed for animals or children.
2.6 Personnel
Bartlett Tree Experts will determine and provide the correct Bartlett personnel for completing the Work based scope
of the project, the expertise needed, and the geographic location of the work, in order to meet the goals of the
Client.
2.7 Accuracy of Information Provided By the Client or By Third Parties Acting on Behalf of the Client
(a) The Client acknowledges that Bartlett Tree Experts cannot be held responsible for the accuracy of or content of
information provided by the Client or third parties acting on behalf of the Client, including but not limited to; the legal
description of the property, issues of title and/or ownership of the property, software programs, property and
property line locations and/or boundaries, or other pieces of information provided which are integral to the final
outcome of the consulting Work.
(b) The Client agrees to correct any errors in any such inaccurate information that it or any third party acting on its
behalf, provides Bartlett Tree Experts, once the inaccuracy is known, if such information will be necessary for
General Terms for Commercial Consulting Services Page 4
The F.A. Bartlett Tree Expert Company
Bartlett Tree Experts to base its final analysis, management plans, written reports, information or recommendations
on for the finalization of the Work.
2.8 Information Provided By Reliable Sources
In certain circumstances, Bartlett Tree Experts may need to engage outside reliable sources to provide specialized
information, cost estimates, or opinions. Bartlett Tree Experts will make every effort to engage reputable and
reliable sources, and will communicate the use of these sources to the Client if such sources are used to help
determine an integral part of the Work.
2.9 Tree Locations, Maps, Sketches, and Diagrams
The Client acknowledges that Bartlett Tree Experts may use several means and methods to provide tree locations
on maps, sketches, or drawings, and that the use of tree locations on maps, sketches, diagrams, and/or in pictures
are intended to aid the Client in understanding the deliverables provided, and may not be to scale and should not be
considered precise locations, engineering surveys, or architectural drawings.
2.10 Global Positioning Systems
The Client acknowledges that all global positioning system (GPS) devices used to locate trees, shrubs, and plant
material, have some accuracy limitations, and regardless of the methodologies or software programs used to
enhance the accuracy of the locations, there will always be some level of meter or sub meter locational
discrepancies within any deliverable product.
2.11 Advice, Opinions, Conclusions, and Recommendations
(a) The Client Acknowledges that all advice, opinions, conclusions, and recommendations provided represent the
professional objective opinion(s) of Bartlett Tree Experts; which are in no way predetermined, or biased toward any
particular outcome.
(b) The Client acknowledges that all advice, opinions, conclusions, and recommendations provided verbally or in written
format such as email, management plans, or reports will be based on the present status of the tree(s), property(s),
environmental conditions, and industry standards. Any advice, opinions, conclusions, and recommendations
provided do not take into account any future changes in environmental conditions or changes to current industry
standards which are unknown and unforeseen at the time the Work is performed.
2.12 Tree Risk Assessments and Inventories
(a) If the Client Agreement is specifically for Bartlett Tree Experts to provide a Level 1 Limited Visual, Level 2 Basic, or
Level 3 Advanced assessment of tree risk for any tree or group of trees for the Client in accordance with industry
standards, the Client understands that any risk ratings and recommendations for mitigating such risks will be based
on the observed defects, conditions, and factors at the time of the tree risk assessment or inventory.
(b) The Client acknowledges that any recommendations made to mitigate risk factors will be made in accordance with
industry best practices and standards, but that the decision to implement the recommended mitigation or remove the
risk factors rests solely with the Client.
(c) The Client understands that all risk ratings used are intended to assist the Client with understanding the potential for
tree or tree part failure, and are not meant to be used to declare any tree or tree part to be safe or free from any
defect. As such, the Client should not infer that any tree not identified as having an imminent or probable likelihood
of failure, or not identified with a moderate, high, or extreme risk rating, or not having a condition rating of poor or
dead is “safe” or will not fail in any manner.
(d) The Client understands that it is the Client’s responsibility to ensure that the assessed tree or trees are continually
inspected and reassessed periodically, or after any major weather event, in order to ensure that risk rating
information is kept current, and to enter any changes to risk ratings or mitigation measures to the inventory or
tracking system used by the Client.
2.13 Tree or Plant Value Appraisals
(a) The Client acknowledges that tree appraisal is not an exact science. If the Client Agreement is for Bartlett Tree
Experts to provide the Client with an appraisal estimate of cost or value, or estimated tree asset value, for specified
trees or plant materials, the Client understands that those estimates will be based on a combination of visible
conditions at the time of appraisal, information or pictures provided by the Client, local knowledge, information
and/or cost estimates provided by local nurseries or plant wholesalers, information and/or costs provided by tree
care or landscape installation and maintenance companies, industry best practices, and/or asset value software.
(b) The Client understands that while any such appraisal will be based on one or several accepted industry methods of
appraising plant material values, the appraised values provided may or may not be accepted as the final value by
third parties, or decision makers in disputes over plant values, such as courts, arbitrators, insurers, or mediation
efforts.
2.14 Local and Tree-Related Permits
Unless the Client Agreement states differently, the Client is responsible for obtaining and paying for all required local
or tree related permits required. If the Work stated in the Client Agreement involves Bartlett Tree Experts submitting
for, or assisting the Client in submitting for, any kind of local or tree-related permit, the Client understands that
Bartlett Tree Experts cannot guarantee the successful outcome. If Bartlett Tree Experts submits a local or tree
permit application on behalf of the Client, the Client must provide all necessary information for Bartlett to make such
a submittal, and the Client will be responsible for paying for, or reimbursing Bartlett Tree Experts for, all fees and
expenses related to the application process, regardless of the outcome.
General Terms for Commercial Consulting Services Page 5
The F.A. Bartlett Tree Expert Company
2.15 Expert Witness and Testimony
The Client acknowledges that unless the Scope of Work in Client Agreement is specifically to perform Expert
Witness services and testimony for the Client, then nothing in the Client Agreement will obligate Bartlett Tree
Experts to perform Expert Witness services or provide expert testimony for or on behalf of the Client.
2.16
(a) Environmental Benefits Assessments The Client understands that Bartlett Tree Experts may use one or more software, or other programs, developed by
other companies or government agencies, which are designed to help provide estimates on the environmental
benefits of trees, shrubs, or other plant materials if the Work involves providing an environmental benefit
assessment for the Client.
(b) The Client acknowledges that while Bartlett Tree Experts will be responsible for the correct collection and input of
data into any such software or other program used to help estimate environmental benefits of trees, shrubs, and
other plant materials, the determinations of the data made by any such program may vary based on the method,
software, type, year, or version used at any given time. The Client understands that any such method, software,
type, year, or version used is meant to provide a sound, scientific method to help the Client understand the
environmental benefits of the collected data.
2.17 Tree and Property Hazards and Safety Issues The Client understands that in no way does Bartlett Tree Experts imply, nor should the Client infer that Bartlett Tree
Experts assumes the responsibility for inspecting, identifying, and correcting tree or property hazards or safety
issues on or near the Client’s property, or conducting tree risk assessments, for which the Client Agreement does
not specify, during the course of any of its ongoing consultative or other activities related to this Agreement.
2.18
(a)
Remote Sensing and Tree Canopy Assessments
If the Work requires Bartlett Tree Experts to evaluate aerial imagery to classify land cover classes, classify random
points, or create or manipulate shapefile boundaries, the Client understands that certain factors can prohibit the
accuracy of the final Work product, such as; the availability of imagery, files, and shapefiles for the property or site
from reliable sources, the accuracy and quality of imagery, files, or shapefiles obtained from reliable sources or
provided by the Client, the date of when the imagery, files, or shapefiles were taken or created, and the ability for a
person to visually discern the difference between the pixels of aerial imagery.
(b) If such factors inhibit the accuracy of the Work, Bartlett Tree Experts may choose to conduct visual assessments, or
use other means, to verify or classify points or imagery into the required specifications. If such alternate methods
are used, Bartlett Tree Experts will communicate the use of such methods to the Client in the final work product. If it
is not possible or feasible to use alternative methods, then the Client acknowledges that the final work product may
have some gaps in accuracy.
2.19
(a)
Use of Drones and Drone-Related Equipment
If the Work specifies the use of Drones or Drone-related equipment to help collect information, the Client
acknowledges that in some cases the use of Drones and Drone-related equipment can provide detailed information,
imagery, views, and pictures of a tree(s) or property(s); however, in some cases, not all aspects of a tree(s) or
property(s) can be seen or accessed by a Drone. The Client understands that this technology can be limited and
should not be used by the Client as the sole decision-making criteria, but rather one of many factors used by the
Client in the decision-making process.
(b) The Client agrees that other methods of obtaining the required information must be included in the Client
Agreement, and may be required to be utilized, in addition to or separate from the use of Drones or Drone related
equipment in the event that the limitations are too severe to perform the required Work.
2.20
(a)
Decay Detection Devices
The Client acknowledges that all decay detecting devices have limitations, and the use of any such device should
be used to supplement information regarding the decay within a tree or trees, and not as the sole source of
information.
(b) If the Work requires the use of a decay detection device, unless the Client Agreement specifies the type of device,
Bartlett Tree Experts will decide the most appropriate type of decay detecting device to use based on the conditions
present and the information needed to supplement and complete the Work.
2.21 Diagnostic Services
Bartlett Tree Experts may offer diagnostic services as a means of attempting to isolate certain plant pest or soil
problems for the Client, and determining the most logical possibility as to the cause of the condition of the trees,
shrubs, or plants in question. The Client understands that in some cases government quarantines may prohibit
samples from being sent to a diagnostic clinic, and in some cases, determinations on samples may be inconclusive.
2.22 Tree Preservation, Tree Protection, and Construction and Site Monitoring
(a) If the Work includes Bartlett Tree Experts conducting or providing tree preservation or tree protection evaluations,
tree impact evaluations, recommendations, specifications, and/or documents required by the governing agency, the
Client understands that Bartlett Tree Experts will review the project, materials or plans that are provided by the
Client, combined with industry best practices and current tree conditions, to arrive at the recommendations and
specifications. The Client also understands that trees are living organisms and that even following all industry best
practices and specifications cannot guarantee that a tree will survive construction impacts, which may include but
are not limited to soil compaction, root damage, inadequate soil moisture, and decrease in tree stability.
(b) If the Work includes Bartlett Tree Experts conducting or providing tree monitoring during project construction, the
Client understands that Bartlett Tree Experts will review the project, materials, or plans that are provided by the
Client and/or described by the Client representative at the site, and provide recommendations to the Client to assist
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The F.A. Bartlett Tree Expert Company
with tree preservation or protection, but that the Client will be responsible for ensuring the implementation of such
recommendations by the Client or any third parties.
2.23
(a)
Irrigation and Recycled Water Assessments
If the Work requires Bartlett Tree Experts to provide irrigation or recycled water assessments as a means of aiding
the Client with their tree care needs, the assessments will be provided using the best known site conditions, the best
available water quality information, or the best available water quality test results provided to Bartlett Tree Experts;
however, the Client acknowledges that Bartlett Tree Experts cannot provide information on water source, delivery
systems, water chemistry, water quality testing methodology, or distribution systems.
2.24 Bird, Water Fowl, and Wildlife Habitat Assessments
If the Work requires Bartlett Tree Experts to provide bird, water fowl, and wildlife habitat assessments or
identifications as a means of aiding the Client with their tree care needs and wildlife considerations, the
assessments will be based on known site conditions and available industry bird, waterfowl, and wildlife management
information.
2.25
(a)
Endangered or Protected Species and Habitats
If the Work is for Bartlett Tree Experts to identify trees or plant materials that may be endangered or protected
species, or to identify trees or plant materials that may be primary or secondary habitat for endangered or protected
species, or to provide any analysis for a project that may affect any endangered species or protected species or its
habitat, then Bartlett Tree Experts will base all reports and information on the existence of any known endangered or
protected species and known habitats using government approved endangered or protected species or habitat
information.
(b) The Client acknowledges that Bartlett Tree Experts cannot be responsible for identifying unknown endangered
species or habitats.
2.26 Wetland and Riparian Habitat Mapping
The Client understands that if the Work involves wetland or riparian habitat mapping, such maps will require the
Client to provide the tree or plant species considered to be the primary or secondary habitat for the specific species
of animal in question, and such maps will be limited to the species information provided as it overlays within the
known designated wetland areas.
2.27 Representation Services If the Work involves a member of Bartlett Tree Experts acting as a representative for, or decision-maker for, the
Client, including but not limited to activities such as reviewing, approving or declining tree-related permits, plants,
designs, or selections submitted by third parties, then the Client agrees to be the final decision-maker in the event of
a third party appeal of an adverse decision or recommendation made by Bartlett Tree Experts with respect to
granting or denying a tree related permit, plant, design, or selection submitted by a third party. The Client also
agrees to defend Bartlett Tree Experts against any claims made by third parties regarding such decisions or
recommendations, and represent the decisions and recommendations of Bartlett Tree Experts, as if such decisions
or recommendations were made by the Client.
2.28
(a)
Integrated Pest Management
If the Work includes consultation for integrated pest management services, the Client understands that the final
product may involve recommendations for plant health care treatments that will be tailored to meet the Client’s
needs for specific trees, shrubs, turf areas, or plants. In creating these recommendations, Bartlett Tree Experts will
consider the Client’s objectives, priorities, budgetary concerns, plant materials, site conditions, pest and disease
infestation levels and the expectations of those levels, and timing issues.
(b) The Client acknowledges that such recommendations may involve one or more inspections of specific plants to help
determine insect and disease concerns, the sampling of specific plant materials or soil areas, an understanding of
the cultural needs of certain plants, consideration of biological control concepts and limitations (natural and/or
introduced predators), recommended improvements to physical site conditions, or the use of pesticide treatments.
The integrated pest management service does not combine all possible controls and concepts for every tree, shrub,
turf area, or plant, but rather it considers the most reasonable option or options for control of and mitigation of insect
and disease damages to the specific trees, shrubs, turf areas or plants as designated by the Client to meet the
Client’s goals.
(c) The Client understands and acknowledges that during the course of an integrated pest management program, as
inspections are taking place, and treatments or other services are being performed to certain trees or shrubs, not
every tree or shrub inspected will require a specific treatment or other service, and in fact, some trees or shrubs may
not require any specific treatment or other service throughout the course of a season to maintain health and vigor if
the inspections show insignificant pest thresholds, and sound environmental and cultural conditions.
(d) The Client also understands that tree, shrub, plant and turf inspections conducted during the integrated pest
management program are for the purpose of determining plant health issues and, insect and disease thresholds;
and are not conducted for the purposes of determining tree, shrub, plant, or turf safety.
2.29 Plant Species Selection If the Work involves Bartlett Tree Experts providing advice and guidance on plant species selection to aid the Client
with their landscape site needs, Bartlett Tree Experts will provide the advice and guidance based on the known site
conditions, the available plant species locally at the time, and the plant species characteristics. The Client will be
responsible for the planting and maintenance, and ensuring the survival of such plant selections in the landscape.
2.30
(a)
Trees and Subsidence Assessments
If the Work involves Bartlett Tree Experts providing an assessment of relationship between certain trees or tree
parts and the subsidence or movement of a building or structure, the Client understands that certain inferences and
General Terms for Commercial Consulting Services Page 7
The F.A. Bartlett Tree Expert Company
assumptions will be made given the location, visibility, soil and drainage conditions, size, species, and condition of
the tree or trees, and other factors, in order to perform the Work in the least intrusive manner possible.
(b) Bartlett Tree Experts recommends that the Client reviews any tree related report recommendations, prior to having
the work completed, with their structural engineer or other qualified building contractor to help the client determine
any potential adverse impact to the buildings or structures.
2.31 Investigation of Covenants, Easements, Constraints, or Restrictions
The Client is responsible for investigating and identifying to Bartlett Tree Experts any covenants, easements,
constraints, or other restrictions to the title or deed on the property that may adversely impact Bartlett Tree Experts’
ability to perform the Work.
2.32 Cancellation
If the Client cancels or reduces the Work after the Work has started, the Client shall pay Bartlett Tree Experts for all
the items of the Work that have been completed and all reasonable costs Bartlett Tree Experts has incurred in
preparing to perform the remainder of the Work.
2.33 Payment
The Client shall pay for the Work when the Client receives Bartlett Tree Experts’ invoice for the Work, unless
specific payment terms have been agreed upon by the parties. If any amount remains unpaid 30 days after the date
of the invoice or any period stated in the Client Agreement, whichever is longer, as a service charge the unpaid
amount will accrue interest at the rate of 1.5% per month (or 18% per year) or the maximum rate permitted by law,
whichever is lower. The Client shall reimburse Bartlett Tree Experts for any expenses (including attorneys’ fees and
court costs) it incurs in collecting amounts that the Client owes under the Client Agreement.
Article 3
TREE CONDITIONS
3.1 Cables, Braces and Tree-Support Systems
The Client acknowledges that cables, braces or tree-support systems are intended to reduce the risk associated
with tree part breakage by providing supplemental support to certain areas within trees and in some cases by
limiting the movement of leaders, limbs, or entire trees, and are intended to mitigate the potential damage
associated with tree part breakage; but that such supplemental support systems cannot eliminate the risk of
breakage or failure to trees or tree parts entirely, and future breakage and damage is still possible
(a) The Client acknowledges that for cables, braces or tree-support systems to function optimally, the Client must
arrange for them to be inspected and maintained by a qualified arborist periodically and after each major weather
event.
3.2 Lightning Protection Systems
(a) The Client acknowledges that lightning protection systems are intended to direct a portion of the electricity from a
lightning strike down through the system into the ground, and mitigate the potential damage to the tree from a
lightning strike, but that such systems cannot prevent damage to structures, nor can such systems prevent damage
to trees caused by lightning entirely.
(b) The Client acknowledges that for lightning protection systems to function optimally, the Client must arrange for them
to be inspected and maintained by a qualified arborist periodically and after each major weather event.
3.3 Recreational Features
(a) The Client acknowledges that Bartlett Tree Experts recommends stopping the use of, and removing, any tree house,
ropes course, swing, or other recreational feature attached to a tree. Regardless of the health or condition of the
tree, such features might be unsuited for the intended use or might place unpredictable forces on the feature or the
tree, resulting in failure of the feature or the tree and injury to persons or damage to property. Bartlett Tree Experts
is not responsible for the consequences of use of any such feature.
(b) The Client acknowledges that if a recommendation is made to mitigate an observed and immediate safety issue on
a tree with any such device or feature attached, such as the removal of a dead, dying, or broken limb that could fall
and injure a person or damage property, the Client should not infer that following the recommendation and
mitigating the immediate safety issue makes the tree in question safe for the use of the attached device or feature.
3.4 Root Pruning
In the right circumstances, root pruning is a valuable and necessary service, but it might pose a risk to the health
and structural integrity of trees. To limit that risk, Bartlett Tree Experts performs root pruning to industry standards,
but the Client acknowledges that the health and structural integrity of trees within the Scope of Work might
nevertheless be adversely affected by any root pruning performed as part of the Work. Bartlett Tree Experts shall
assist the Client in understanding the risks involved before opting for root pruning, but the Client will be responsible
for deciding to proceed with root pruning.
3.5 Stumps, Stump Grinding, Tree Grates
The Client acknowledges that if any recommendations call for the removal of certain trees, that the remaining
stumps may present tripping hazards, and that it is the Client’s responsibility to remove any such tripping hazard,
whether such hazard is created by the stump, the grindings if the stump is ground down, or any tree grates that
exist.
3.6 Client Trees in Hazardous Condition
If the Client Agreement specifies that one or more trees within the Scope of Work are in hazardous condition, have
an extreme, high or moderate risk rating, or should be removed for safety reasons, the Client acknowledges that
General Terms for Commercial Consulting Services Page 8
The F.A. Bartlett Tree Expert Company
removing those trees would prevent future damage from trees or tree limbs falling. If the Client requests that one or
more of those trees be pruned instead of removed, the Client acknowledges that although pruning might reduce the
immediate risk of limbs falling, it does not preclude the possibility of future limb, stem, or root failure. Bartlett Tree
Experts is not responsible for any such future failure.
3.7 Trees in Poor Health or a Severe State of Decline
The Client acknowledges that if a tree is in poor health or in a severe state of decline, Bartlett Tree Experts cannot
predict how that tree will respond to any recommended plant health care or soil care and fertilization treatment and
might not be able to prevent that tree from getting worse or dying.
3.8 Trees Planted and Maintained by Other Contractors
The Client acknowledges that if trees within the Scope of Work were recently planted or are being maintained by
one or more other contractors or if one or more other contractors will be watering and providing services with
respect to trees within the Scope of Work, how those trees respond to treatment in the course of the Work might be
unpredictable, and Bartlett Tree Experts cannot be responsible for the health of such trees or plants.
3.9 Trees with Cones and Large Seed Pods
The Client acknowledges that large tree cones or seedpods on some trees can become dislodged and fall without
notice, creating a hazard to persons or property. If the Client has the type of tree on their property that produces
large, heavy cones or seedpods, and the Client does not wish to remove the tree, Bartlett Tree Experts
recommends that the Client marks off and restricts the area under and near the tree from pedestrian and vehicle
traffic whenever possible, places a warning sign near the tree, remains aware of the hazardous conditions the falling
cones can create, and inspects the tree annually and removes any observable cones if possible in order to mitigate
the potential for damage from falling cones.
3.10 Fire Damage
(a) Regardless of the species, trees exposed to fire can suffer structural damage that goes beyond whatever external
damage might be visible. Fire can cause cracking and brittleness in tree structure and integrity; it can make pre-
existing defects worse; it can make roots less stable; and it can weaken the overall health of the tree, making it
susceptible to disease and pest infestations. The effects of fire damage are unpredictable and difficult to determine.
Bartlett Tree Experts is not responsible for any injury to persons or damage to property resulting from services
performed on fire-damaged trees as part of the Work.
(b) The Client acknowledges that if trees and shrubs on the Client’s property have been exposed to fire, the Client
should have qualified arborist periodically inspect trees and shrubs on the property for fire damage.
Article 4
DISPUTE RESOLUTION
4.1 Arbitration
(a) As the exclusive means of initiating adversarial proceedings to resolve any dispute arising out of or related to the
Client Agreement or Bartlett Tree Experts’ performance of the Work, a party may demand that the dispute be
resolved by arbitration administered by the American Arbitration Association in accordance with its commercial
arbitration rules, and each party hereby consents to any such dispute being so resolved. Any arbitration commenced
in accordance with this section must be conducted by one arbitrator. Judgment on any award rendered in any such
arbitration may be entered in any court having jurisdiction. The parties also agree that the issue of whether any
such dispute is arbitrable will be decided by an arbitrator, not a court.
(b) The arbitrator must not award punitive damages in excess of compensatory damages. Each party hereby waives
any right to recover any such damages in any arbitration.
4.2 Third Party Liability
The Client acknowledges that the use of any management plans created, reports written, recommendations, maps,
sketches, and conclusions made are for the Client’s use and are not intended to benefit or cause damage to any
third party. Bartlett Tree Experts accepts no responsibility for any damages or losses suffered by any third party or
by the Client as a result of decisions made or actions based upon the use of reliance of the management plans
created, reports written, recommendations, maps, sketches, and conclusions made by any third party.
4.3 Limitation of Liability
The maximum liability of Bartlett Tree Experts for any losses incurred by the Client arising out of the Client
Agreement or Bartlett Tree Experts’ performance of the Work will be the amount paid by the Client for the Work,
except in the case of negligence or intentional misconduct by Bartlett Tree Experts.
Article 5
MISCELLANEOUS
5.1 Client Responsibilities
(a) The Client is responsible for the maintenance of the Client’s trees, shrubs, and turf and for all decisions as to
whether or not to prune, remove, or conduct other types of tree work on each respective tree, or when to prune,
remove, or conduct other tree work on any respective tree, and all decisions related to the safety of each respective
tree, shrub, and turf area.
(b) Nothing in this Agreement creates an ongoing duty of care for Bartlett Tree Experts to provide safety maintenance
or safety inspections in and around the Client’s property. It is the responsibility of the Client to ensure the safety of
its trees and landscape, and to take appropriate actions to prevent any future tree or tree part breakage or failures,
or otherwise remove any hazardous conditions which may be present or may develop in the future.
General Terms for Commercial Consulting Services Page 9
The F.A. Bartlett Tree Expert Company
5.2 Severability
If any portion of this Client Agreement is found to be unenforceable, then only that portion will be stricken from the
Client Agreement, and the remainder of the Client Agreement will remain enforceable.
5.3 Unrelated Court Proceedings
The Client acknowledges that Bartlett Tree Experts has prepared the Client Agreement solely to help the Client
understand the Scope of Work and the related costs. If a court subpoenas Bartlett Tree Experts’ records regarding,
or requires that a Bartlett representative testify about, the Client Agreement or the Work in connection with any
Proceeding to which Bartlett Tree Experts is not a party or in connection with which Bartlett Tree Experts has not
agreed to provide expert testimony, the Client shall pay Bartlett Tree Experts Two Hundred Dollars ($200.00) per
hour for time spent by Bartlett representatives in collecting and submitting documents for those Proceedings and
attending depositions or testifying as part of those Proceedings.
5.4 Use of Information
The Client acknowledges that the information provided within the Client Agreement and any deliverables provided is
solely for the use of the Client for the intended purpose of helping the Client understand and manage their tree care
needs. All deliverables must be used as a whole, and not separated or used separately for other purposes.
5.5 Notices
For a notice or other communication under the Client Agreement to be valid, it must be in writing and delivered
(1) by hand, (2) by a national transportation company (with all fees prepaid), or (3) by email. If a notice or other
communication addressed to a party is received after 5:00 p.m. on a business day at the location specified for that
party, or on a day that is not a business day, then the notice will be deemed received at 9:00 a.m. on the next
business day.
5.6 Amendment; Waiver
No amendment of the Client Agreement will be effective unless it is in writing and signed by the parties. No waiver
under the Client Agreement will be effective unless it is in writing and signed by the party granting the waiver. A
waiver granted on one occasion will not operate as a waiver on other occasions
5.7 Conflicting Terms
If these terms conflict with the rest of the Client Agreement, the rest of the Client Agreement will prevail. If these
terms conflict with any other Client documentation, terms, or purchase order agreement, then the Client Agreement
and these terms will prevail.
5.8 Entire Agreement
The Client Agreement with these terms constitutes the entire understanding between the parties regarding Bartlett
Tree Experts’ performance of the Work and supersedes all other agreements, whether written or oral, between the
parties.
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 en dorsed 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 Contr actor’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.
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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 SQUAREHARTFORD CT 06183
UB-7N781486-21-51-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:OF12-07-21 1 1
On call arborist
Final Audit Report 2022-06-13
Created:2022-06-09
By:City of Cupertino (webmaster@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAA2kPK85VWfY8218rzRiOHpBT0bZvkqVI3
"On call arborist" History
Document created by City of Cupertino (webmaster@cupertino.org)
2022-06-09 - 9:01:34 PM GMT- IP address: 35.229.54.2
Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval
2022-06-09 - 9:03:10 PM GMT
Document approved by Araceli Alejandre (aracelia@cupertino.org)
Approval Date: 2022-06-09 - 9:58:01 PM GMT - Time Source: server- IP address: 73.170.27.253
Document emailed to Matthew Farin (contracts@bartlett.com) for signature
2022-06-09 - 9:58:03 PM GMT
Email viewed by Matthew Farin (contracts@bartlett.com)
2022-06-09 - 9:58:14 PM GMT- IP address: 172.225.132.113
Document e-signed by Matthew Farin (contracts@bartlett.com)
Signature Date: 2022-06-13 - 5:29:18 PM GMT - Time Source: server- IP address: 69.74.255.194
Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature
2022-06-13 - 5:29:20 PM GMT
Email viewed by Christopher D. Jensen (christopherj@cupertino.org)
2022-06-13 - 5:31:57 PM GMT- IP address: 104.47.73.126
Document e-signed by Christopher D. Jensen (christopherj@cupertino.org)
Signature Date: 2022-06-13 - 5:32:18 PM GMT - Time Source: server- IP address: 136.24.42.212
Document emailed to Benjamin Fu (benjaminf@cupertino.org) for signature
2022-06-13 - 5:32:20 PM GMT
Email viewed by Benjamin Fu (benjaminf@cupertino.org)
2022-06-13 - 6:03:36 PM GMT- IP address: 104.47.73.126
Document e-signed by Benjamin Fu (benjaminf@cupertino.org)
Signature Date: 2022-06-13 - 6:04:02 PM GMT - Time Source: server- IP address: 73.189.98.179
Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature
2022-06-13 - 6:04:04 PM GMT
Email viewed by Kirsten Squarcia (kirstens@cupertino.org)
2022-06-13 - 6:07:13 PM GMT- IP address: 104.47.73.254
Document e-signed by Kirsten Squarcia (kirstens@cupertino.org)
Signature Date: 2022-06-13 - 6:07:21 PM GMT - Time Source: server- IP address: 162.245.20.145
Agreement completed.
2022-06-13 - 6:07:21 PM GMT