Loading...
HomeMy WebLinkAbout19 - Approval of Agreement for On -Call Plant Healthcare ServicesQ �EwPpRT O c — '9 CITY OF NEWPORT BEACH City Council Staff Report TO: FROM: PREPARED BY: PHONE: TITLE: ABSTRACT: November 16, 2021 Agenda Item No. 19 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov Kevin Pekar, Parks & Trees Superintendent kpekar@newportbeachca.gov 949-644-3069 Approval of Agreement for On -Call Plant Healthcare Services with West Coast Arborists, Inc. The City of Newport Beach (City) utilizes a contractor to provide on-call plant healthcare services for City trees and landscaping. In an effort to continue the City's high level of service and to maintain a quality urban forest, staff attained proposals through a Request for Proposals (RFP) and conducted a review and selection process. Staff recommends that the City Council award a three-year, on-call agreement with two automatic annual extensions with West Coast Arborists, Inc. (WCA) with a not -to -exceed (NTE) amount of $600,000. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve a three-year On -Call Agreement with two automatic annual extensions with West Coast Arborists, Inc. for plant healthcare services for City trees and landscape with a not -to -exceed amount of $600,000, and authorize the Mayor and City Clerk to execute the agreement. DISCUSSION: The Public Works Department is responsible for the maintenance of over 35,000 City trees and 600 acres of City landscape. In particular, the early detection, diagnosis and treatment of invasive pests and diseases is critical to preserving the City's vast urban forest. Many new tree and landscape pests are introduced to Southern California each year. To address these new infestations, and safeguard and maintain the City's assets and natural resources, staff needs a contractor with specialized knowledge in Integrated Pest Management (IPM) strategies, including early detection, diagnostic abilities, and the usage of preventative treatments. 19-1 Approval of Agreement for On -Call Plant Healthcare Services with West Coast Arborists, Inc. November 16, 2021 Page 2 Over the past 18 months, staff has seen a rise in the need for new and more aggressive treatments of City trees with infestations. Some infestations require immediate foliar treatments (application directly to the leaves) and some infestations can be systemically treated to prevent future outbreaks. For example, almost half of the City's 2,000 Magnolia trees are currently infested with Tuliptree Scale, which calls for separate treatments in the three insect lifecycle phases (egg, nymph, and adult) to maintain tree health and sufficient control of the nuisance honeydew dripping. Additionally, using good IPM principles, new treatments also include the use of monitoring traps and biological controls, such as the use of predatory insects to control pest insects. In line with the City's commitment to a holistic IPM program, staff and its contractors have employed the use of both organic and synthetic treatments of pest infestations. Organic treatments, such as the use of horticultural oil, have proved successful, especially for controlling early stages of aphid infestations on our Jacaranda, Orchid and Strawberry trees. The current agreement for plant healthcare services with RPW Services Inc. was executed on July 1, 2017 for a total three-year NTE amount of $120,000. The agreement covers services including insect and disease treatments on the City's trees and other landscape, fertilization for the City's trees and other landscape, growth and fruit control treatments on select street trees, professional tree and landscape inspections and consultation, and as -needed pest control treatments. This agreement has been amended twice, extending the contract to June 30, 2022, and increasing the NTE amount to $180,000, to proactively control worsening pest infestations. This contract funding limit has proven to be too low and is not enough to keep up with the increasing need for plant healthcare services. Currently, there is only $25,000 NTE remaining with another eight months of contract life. For example, the recent spread of the Tuliptree Scale pest infestation has exceeded the plant healthcare funding budget by over $70,000 alone. The City has been able to treat the infestation on its own trees through a multi -seasonal program, however it is unlikely to see a reduction in treatment soon because the pest will likely spread to non -infested parts of the City. Also, private existing trees and nursery stock remain largely untreated. Additionally, a number of plant healthcare services have been deferred due to concentrated spending on the Tuliptree Scale efforts. Some of the deferred treatments and nutritional programs include: the vertical mulching of the Cork Oaks at L Street Park, the ongoing treatment of the Spider -mite on the Pines at Bonita Creek Park, supplemental micro -nutrients for the Purple Orchids in Cameo Shores and Cameo Highlands, and the persistent Aphid infestation of the Strawberry Trees along the medians of Balboa Blvd. In anticipation of the end of the agreement's term and exhaustion of the NTE, on September 2, 2021, the Public Works Department issued an RFP for On -Call Plant Healthcare Services for City trees and landscapes through the City's electronic bidding portal. Thirty-eight vendors were notified, requiring proposers to supply qualifications, local references, and costs for various as -needed plant healthcare services. Proposals were due September 30, 2021 and the City received two proposals. 19-2 Approval of Agreement for On -Call Plant Healthcare Services with West Coast Arborists, Inc. November 16, 2021 Page 3 The evaluation panel consisted of Public Works and Recreation and Senior Services Department staff, who reviewed the proposals and evaluated each firm on a combination of qualifications, experience, and cost. It was determined prior to evaluations that technical qualifications would comprise 40% of the total score and cost would comprise the remaining 60%. The Technical Score is achieved by taking the average technical qualifications score of all proposals. The Cost Ratio Score was achieved by immediately assigning the maximum (60) points to the proposal offering the lowest cost to each line item. The other proposal was then deducted points equal to the percentage that their cost proposal is higher than the lowest cost proposal. An average of the Cost Ratio Scores was then taken to determine the final Cost Ratio Score. WCA had the highest aggregate score. WCA possesses a California State Contractor's License Classification "C-27", as required by the project specifications. Additionally, WCA employs personnel possessing a valid Pest Control Advisors License, a valid Qualified Applicator's License, as well as 10 Qualified Applicators. A review of references for WCA shows satisfactory provision of similar services for other local coastal municipalities. Staff recommends that the City Council award WCA a three-year agreement with two automatic annual extensions for on-call plant healthcare services for City trees and landscaping, with a total NTE exceed cost of $600,000. This total includes an annual allotment of approximately $120,000 per year to cover the consistent and ongoing maintenance in the control of the Tuliptree Scale, to move forward with deferred pest and disease control and nutritional programs for other portions of the city, and to expand the City's current preventative maintenance IPM program. Lastly, funding is included for preventative treatments of newly identified pests such as the Banana Moth and the South American Palm Weevil, which are anticipated to arrive in the City in the near future and may impact the City's vast inventory of palm trees. By having this additional not -to -exceed contract limit, the City will be able to provide, if necessary, an expansive and proactive approach to plant healthcare and be better prepared for future pest infestations. FISCAL IMPACT: The adopted operating budget includes sufficient funding for this contract. It will be expensed to the Contract Services account in the Trees Section of the Public Works Department, 0108032-811017. Funding for future years will be included in the development of the proposed budgets. 19-3 West Coast Arborists, Inc. WCA RPW Services, Inc. TECHNICAL SCORE OUT OF 40): 30.67 36.00 COST RATIO SCORE (OUT OF 60): 58.48 38.61 AGGREGATE SCORE (OUT OF 100): 89.14 74.61 RANK: 1 2 WCA had the highest aggregate score. WCA possesses a California State Contractor's License Classification "C-27", as required by the project specifications. Additionally, WCA employs personnel possessing a valid Pest Control Advisors License, a valid Qualified Applicator's License, as well as 10 Qualified Applicators. A review of references for WCA shows satisfactory provision of similar services for other local coastal municipalities. Staff recommends that the City Council award WCA a three-year agreement with two automatic annual extensions for on-call plant healthcare services for City trees and landscaping, with a total NTE exceed cost of $600,000. This total includes an annual allotment of approximately $120,000 per year to cover the consistent and ongoing maintenance in the control of the Tuliptree Scale, to move forward with deferred pest and disease control and nutritional programs for other portions of the city, and to expand the City's current preventative maintenance IPM program. Lastly, funding is included for preventative treatments of newly identified pests such as the Banana Moth and the South American Palm Weevil, which are anticipated to arrive in the City in the near future and may impact the City's vast inventory of palm trees. By having this additional not -to -exceed contract limit, the City will be able to provide, if necessary, an expansive and proactive approach to plant healthcare and be better prepared for future pest infestations. FISCAL IMPACT: The adopted operating budget includes sufficient funding for this contract. It will be expensed to the Contract Services account in the Trees Section of the Public Works Department, 0108032-811017. Funding for future years will be included in the development of the proposed budgets. 19-3 Approval of Agreement for On -Call Plant Healthcare Services with West Coast Arborists, Inc. November 16, 2021 Page 4 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — On -Call Maintenance/Repair Services Agreement for Plant Healthcare Services with West Coast Arborist, Inc. 19-4 ATTACHMENT A ON-CALL MAINTENANCEIREPAIR SERVICES AGREEMENT WITH WEST COAST ABORISTS, INC. FOR AS -NEEDED PLANT HEALTHCARE SERVICES THIS ON-CALL MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement") is made and entered into as of this 2nd day of December, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and WEST COAST ABORISTS, INC., a California corporation ("Contractor"), whose address is 2200 East Via Burton St., Anaheim, CA 92806, 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 statutes of the State of California and the Charter of City. B. City desires to engage Contractor to perform on-call maintenance and/or repair services for City ("Project"). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the maintenance and/or repair services described in this Agreement. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by City for the Project, is familiar with all conditions relevant to the performance of services, and has committed to perform all work required for the compensation specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows - 1 . ollows:1. TERM The term of this Agreement shall commence December 2, 2021, and shall expire December 1, 2024 ("Original Term"), unless terminated earlier as set forth herein. Prior to the expiration of the Original Term, the term of this Agreement shall automatically extend for an additional one (1) year, up to a maximum of two (2) additional one (1) year terms (each a "Renewal Term"), unless the City provides Contractor with written notice at least seven (7) days prior to the end of the Original Term, or any Renewal Term, as applicable, that this Agreement will not extend. In any event, the term of the Agreement, including the Original Term and any Renewal Terms shall not extend beyond December 1, 2026, without a written amendment to this Agreement. 19-5 2. SERVICES TO BE PERFORMED 2.1 Contractor shall perform the on-call services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Upon written request from the Project Administrator as defined herein, Contractor shall provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal"). The Letter Proposal shall include the following: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; and 2.1.3 The estimated number of hours and cost to complete the Services; 2.1.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein, not later than two (2) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. West Coast Aborists, Inc. Page 2 19-6 4. COMPENSATION TO CONTRACTOR 4.1 City shall pay Contractor for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except as otherwise provided herein, no rate changes shall be made during the term of this Agreement without the prior written approval of City. Contractor's compensation for all Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Six Hundred Thousand Dollars and 00/100 ($600,000.00), without prior written amendment to the Agreement. 4.2 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name and/or classification of employee who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved in writing in advance by City. 4.4 Contractor shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B and the Letter Proposal. 5. PROJECT MANAGER 5.1 Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Victor Gonzalez to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City_ City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Contractor, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. West Coast Aborists, Inc. Page 3 19-7 6. ADMINISTRATION This Agreement will be administered by the Public Works. City's Director of Public Works or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Contractor in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Contractor, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Contractor's Work schedule. 8. TYPE AND INSTALLATION OF MATE RIALS/STAN DARD OF CARE 8.1 Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed or utilized unless approved in advance and in writing by the Project Administrator. 8.2 All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws and legally recognized professional standards. 8.3 Contractor represents and warrants to City that it has, shall obtain and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. RESPONSIBILITY FOR DAMAGES OR INJURY 9.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a West Coast Aborists, Inc. Page 4 19.8 result of Contractor's performance of the Services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subcontractors, or its workers, or anyone employed by either of them. 9.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's Work on the Project, or the Work of any subcontractor or supplier selected by Contractor. 9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.4 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. 9.5 Contractor shall perform all Work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Work by Contractor or its agents. 9.6 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 9.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. West Coast Aborists, Inc. Page 5 19.9 10. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. 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 expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with Contractor on the Project. 12. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Contractor is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. BONDING 15.1 For any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement: (1) a Labor and Materials Payment Bond in the amount of one hundred percent (100%) of the total amount to be paid Contractor as West Coast Aborists, Inc. Page 6 19-10 set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), and in the form attached hereto as Exhibit D which is incorporated herein by this reference, and (2) a Faithful Performance Bond in the amount of one hundred percent (100%) of the total amount to be paid Contractor as set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), and in the form attached hereto as Exhibit E which is incorporated herein by this reference. 15.2 The Labor and Materials Payment Bond and Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. 15.3 Contractor shall deliver, concurrently with City's approval of any Letter Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000.00), the Labor and Materials Payment Bond and Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 16. PREVAILING WAGES 16.1 Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 16.2 Unless otherwise exempt by law, Contractor warrants that no contractor or subcontractor was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Contractor further warrants that it is currently registered and qualified to perform "public work" pursuant to California Labor Code section 1725.5 or any successor statute thereto and that no contractor or West Coast Aborists, Inc. Page 7 19-11 subcontractor will engage in the performance of the Services unless currently registered and qualified to perform public work. 17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 18. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 19. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party. Contractor shall, at Contractor's expense, provide such Documents to City upon prior written request. 20. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. K N*0101N11-11 Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate West Coast Aborists, Inc. Page 8 19-12 records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 22. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Contractor shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. West Coast Aborists, Inc. Page 9 19-13 25.2 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Public Works Director Public Works City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Victor Gonzalez West Coast Aborists, Inc. 2200 East Via Burton St. Anaheim, CA 92806 26. CLAIMS 26.1 Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 26.2 To the extent that Contractor's claim is a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, the Parties agree to follow the dispute resolution process set forth therein. Any part of such "Claim" remaining in dispute after completion of the dispute resolution process provided for in Public Contract Code section 9204 or any successor statute thereto shall be subject to the Government Claims Act requirements requiring Contractor/Consultant to file a claim in strict conformance with the Government Claims Act. To the extent that Contractor's claim is not a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, Contractor shall be required to file such claim with the City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required West Coast Aborists, Inc. Page 10 19-14 to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. LABOR 28.1 Contractor shall conform with all applicable provisions of state and federal law including, but not limited to, applicable provisions of the federal Fair Labor Standards Act ("FLSA") (29 USCA § 201, et seq.). 28.2 Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give written notice to City, and provide all relevant information. 28.3 Contractor represents that all persons working under this Agreement are verified to be U.S. citizens or persons legally authorized to work in the United States. 28.4 To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorneys' fees, and other costs of defense by reason of actual or alleged violations of any applicable federal, state and local labor laws or law, rules, and/or regulations. This obligation shall survive the expiration and/or termination of the Agreement. 29. STANDARD PROVISIONS 29.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 29.2 Compliance with all Laws. Contractor shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. West Coast Aborists, Inc. Page 11 19-15 29.3 Waiver. A waiver by either party 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. 29.4 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 herein. 29.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 29.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 29.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 29.10 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 29.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] West Coast Aborists, Inc. Page 12 19-16 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: lk joq )al By: F 1 ar n C. Harp C Attorney ATTEST: Date: Leilani I. Brown City Clerk V-C� Attachments: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Brad Avery Mayor CONTRACTOR: WEST COAST ABORISTS, INC., a California corporation Date: By: Patrick Mahoney President Date: By: Richard Mahoney Secretary [END OF SIGNATURES] Scope of Services Schedule of Billing Rates Insurance Requirements Labor and Materials Payment Bond Faithful Performance Bond West Coast Aborists, Inc. Page 13 19-17 EXHIBIT A SCOPE OF SERVICES West Coast Aborists, Inc. Page A-1 19-18 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT SERVICE SPECIFICATIONS AS -NEEDED PLANT HEALTHCARE SERVICES CONTRACT NO. 8750-1 All work necessary for the completion of this contract shall be done in accordance with these Specifications. Contractor Licensing At the time of the award and until completion of work, the Contractor must possess at least the following Contractor Licenses: "C-27". At the start of work and until completion of work, the Contractor and all Subcontractors shall possess a valid Business License issued by the City. Scope of Work • INTENT The intent of these specifications is to provide as -needed plant healthcare services in parks, parkways, medians and other right of ways within the City. • DESCRIPTION OF PROJECT o Furnish all labor, equipment, materials, and supervision to perform maintenance as described herein including, but not limited to, the following: ■ Insect, disease and fertilization for the City's trees and other landscape materials. ■ WORKING HOURS o Normal working hours shall be within a nine (9) -hour day between the hours of 7:00 a.m. and 4:00 p.m., Monday through Friday, unless prior written permission from the City is granted. • LEVEL OF MAINTENANCE o If, in the judgment of the City, the level of maintenance is less than that specified in the Agreement, the City shall, at its option, in addition to or in lieu of other remedies provided herein, withhold appropriate payment from the Contractor until Services are rendered in accordance with specifications set forth in the Agreement and providing no other 19-19 arrangements have been made between the Contractor and the City. Failure to notify of a change and/or failure to perform an item or Work on a scheduled day may, at the City's sole discretion, result in deduction of payment for that date, week, or month. Payment will be retained for Work not performed until such time as the Work is performed to standards set forth in the Agreement. o The Contractor shall perform all Work required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment, traffic control and all utility and transportation services necessary for the Project. • QUALITY OF WORK AND MATERIALS o All material and equipment furnished by the Contractor shall be high grade, and free from defects and imperfections, unless otherwise hereinafter specified. Materials shall be subject to the approval of the Project Administrator. • SUPERVISION OF AGREEMENT o All work shall meet with the approval of the Project Administrator. o Any specific problem area, which does not meet the conditions of the specifications set forth herein, shall be called to the attention of the Contractor and if not corrected, payment to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. • DISPOSAL o All pesticides shall be disposed per label requirements and all applicable laws, including the California Department of Pesticide Regulations. • RECORDS o The Contractor shall keep accurate records concerning all of his/her employees or agents. The Contractor shall provide this information in an organizational chart as changes in staffing occur. Additionally, the Contractor shall provide the City with names and telephone numbers of emergency contact employees. CONTRACTOR'S OFFICE o The Contractor shall maintain a local office (30 -minute drive) with a competent representative who can be reached during normal working hours 19-20 or emergencies. This person should be the Project Manager or his or her designee. • SCHEDULES o All work shall be done within a reasonable time of a Letter Proposal being accepted by City. • SAFETY REQUIREMENT o All work performed under this Agreement shall be performed in such a manner as to provide maximum safety to the public and where applicable, comply with all safety standards required by CAL -OSHA. The Project Administrator reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this Agreement. All contractor vehicles shall have a "W.A.T.C.H." Work Area Traffic Control Manual at all times. o The Contractor shall maintain all service areas free of hazards to persons and/or property resulting from his/her operations. Any hazardous condition noted by the Contractor, which is not a result of his/her operations, shall be immediately reported to the Project Administrator. ■ MAINTENANCE AND TECHNICAL RESPONSIBILITIES o The City shall maintain all documents that pertain to the use of pesticides on its property. o Contractor shall provide the Project Administrator with all of the following in paper and electronic format: ■ A copy of Contractor's Orange County Agricultural Commissioner's "Restricted Materials Permit/Operator I.D. numbers". ■ A written "Pest Control Recommendation" for each site before Contractor uses any pesticide. Recommendation shall include a label and Material Safety Data Sheet for the pesticide proposed. Each complete set of recommendations shall be submitted in a binder (provide two (2) bound copies). ■ A "Pesticide Use Daily Record" for any site that a pesticide was used, within twenty-four (24) hours of application. Total amounts of pesticides applied shall be submitted weekly. A weekly schedule indicating locations to be treated. If a restricted pesticide is going to be used, a copy of the "Notice of Intent To Use Restricted Materials", must be submitted twenty-four (24) hours before application. 19-21 ■ An annual proposed pesticide list including the Environmental Protection Agency numbers and caution level of all the pesticides Contractor intends to use for this Agreement, before any such use. o The Contractor shall not use any pesticide that has not been authorized by the Project Administrator in writing with a Pesticide Recommendation. • SDS REQUIREMENTS o The Contractor will provide a completed SDS (Safety Data Sheet) for hazardous substances as required by Labor Code sections 6382 and 6390, General Industrial Safety Order section 5194 and Title 8, California Administrative Code. SDS sheet for each specified item shall be sent to place of shipment. Additionally, all SDS for product supplied by Contractor are to be mailed to the City's Park and Tree Superintendent, City of Newport Beach at 100 Civic Center Dr. PO Box 1768, Newport Beach, CA 92658. o The Contractor shall maintain a set of the contract documents at the project site at all times. The Contractor will supply written recommendation for all pesticides, herbicides and chemicals for rodent treatment applied within the City. The Contractor or his representative must have in their possession SDS safety sheets for the product that is being applied and a pest control recommendation wdtten by a person licensed by the State of California, Department of Pesticide Regulations. • LICENSES AND PERMITS o The Contractor shall during the term, possess all licenses and permits required for the performance of the work required by this Agreement. Contractor must possess a Business License for Pest Control and must possess or employ person(s) possessing a valid Pest Control Advisers License in the appropriate category (A, B, D, E & G) and a valid Qualified Applicators License in the appropriate category (A, B, C & F). In addition, all persons performing pest control and handling pesticides shall possess a valid Qualified Applicator Certificate in the appropriate category. The classification of the Contractor's license in the company's name required in the performance of this Agreement is a C-27. o All vehicle operators shall have a valid State of California driver's license for the class of vehicle being operated. o The Contractor shall have a valid City of Newport Beach business license prior to starting work. • PESTICIDE SPECIAL PROVISIONS o General Pesticide Application - Pesticide application shall be performed in all of the City owned or controlled parks, parkways, streets, sidewalks, alleyways, vacant lots, embankments, facilities, parking lots, drainage ditches or channels, freeway underpasses, easements or right-of-ways 19-22 identified in the City's request for a Letter Proposal or Contractor's Letter Proposal to keep pest populations to a minimum. o Guarantee and/or Replacement Policy - Existing plants shall be replaced by Contractor if they die due to Contractor's negligence. All replacement plants shall be inspected and approved by City prior to installation. All landscape improvements or repairs shall conform to the City of Newport Beach Landscape Specifications and Details. o The Contractor shall submit on each Letter Proposal a detailed schedule of areas to be treated, listing specific dates and times so irrigation systems can be adjusted to accommodate the work. • PESTICIDE USE SPECIFICATIONS o Any pesticide applications are to be made by or under the supervision of a person holding a valid license, permit or certificate issued pursuant to applicable State or local law or regulation. Said person or company is to be currently registered to conduct a pest control business in the State of California and the County of Orange. o Pesticide applications are to be made in strict compliance with the label directions, restrictions, and precautions as well as with any other requirements deemed necessary by any county, state or federal regulatory agency, or the Municipal Operations Department of City. o The City requires that Contractor posts signage adjacent to turf areas, and/or trees in the City's right-of-way to be treated prior to the application, and applicator shall remain at the treated area until the pesticide has dried. Once the pesticide has dried signage may be removed. Some pesticides may require more advanced posting or a longer period prior to re-entry. If so, follow the pesticide's label. o The Contractor shall provide a list of all proposed chemicals to be used in the fulfillment of the Agreement. Labels and SDS for all listed chemicals shall be supplied at this time. Copies of applicable Pest Control Advisor and Qualified Applicator Licenses shall be submitted, as well as documentation of County registration. All above-mentioned items shall be resubmitted by January 1st of each year in which the Agreement is in effect. o City shall be notified in writing of any changes or deviations from the above- mentioned list. o Application of deviated materials shall not be made prior to approval by the City. o Prior to the application of Category I or restricted use pesticides, written notice must be given to the City for consent. A five working day notice in writing shall be given to the City prior to any pesticide application. Notice 19-23 shall include; name of chemical, area, rate and method of application, and time of day. o Pest Control of horticulturally damaging plant pests (insects, diseases, mites) shall be the responsibility of the Contractor. Written recommendations by a licensed California Agricultural Pest Control Adviser are required to be submitted to the City prior to any application of pesticides. Pest Control shall entail the prevention or eradication of any pest to the satisfaction of the City. The City may determine an acceptable level of impact by any pest and adjust the pest control program of the Contractor accordingly. o Insect and disease control - All landscaped areas shall receive appropriate treatment with Environmental Protection Agency registered pesticides for any insect or disease, which causes or may cause damage to plants. o The Contractor shall post all applications in areas accessible by the public. The operator shall be present on treated sites until spray is dry, at which time postings shall be removed. o The City recommends use of alternative IPM strategies to treat pest issues, when applicable. • REQUIRED REPORTS o Contractor shall be responsible for the filing of all required records and reports, including but not limited to Notice of Intent to Apply, and Pesticide Use Reports, as specified by all county, state and federal agencies. Said reports shall contain accurate and valid information. Copies of all records and reports shall be submitted to the City monthly, with the exception of the Notice of Intent to apply, which shall be submitted prior to application of pesticide. o Contractor shall record and maintain accurate records of all pesticide applications. Records to include date, time of day, location, type of chemical, quantity chemical, method of application, and environmental data. 19-24 EXHIBIT B SCHEDULE OF BILLING RATES West Coast Aborists, Inc. Page B-1 19-25 EXHIBIT B BILLING RATES Service Quantity Cost Unit Tree Spraying Medium to Large Trees (Up to 30 feet) 20+ trees $40.00 each Less than 20 trees $60.00 each Truck Banding (Up to 10 inch DBH) 20+ trees $20.00 each Less than 20 trees $30.00 each PGR's trunk banding (Up to 10 inch DBH) 20+ trees $20.00 each Less than 20 trees $30.00 each Soil Injections (Up to 10 inch DBH) 20+ trees $20.00 each Less than 20 trees $30.00 each Fertilization Drenching (Up to 10 DBH) 20+ trees $20.00 each Trunk Injections Insecticide & Fungicide (Up to 10 inch DBH) 20+ trees $60.00 each Less than 20 trees $80.00 each PCA Pesticide Recommendations $150.00 each Pricing for larger trees will require a letter proposal approved by the City prior to any work being completed. 19-26 EXHIBIT C INSURANCE REQUIREMENTS — MAINTENANCE/REPAIR/JANITORIAL SERVICES 1. Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented West Coast Aborists, Inc. Page C-1 19-27 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Pollution Liability Insurance. If required, Contractor shall maintain a policy providing contractor's pollution liability ("CPL") coverage with a total limit of liability of no less than one million dollars ($1,000,000) per loss and two million dollars ($2,000,000) in the aggregate per policy period. Claims - made policies require a 5 -year extended reporting period. The CPL policy shall include coverage for cleanup costs, third -party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for transportation and off -Site disposal of materials. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. West Coast Aborists, Inc. Page C-2 19.28 D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. 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. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20380413. D. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform West Coast Aborists, Inc. Page C-3 19-29 Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Contractor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. West Coast Aborists, Inc. Page C-4 19-30 ON: 11-311917 CITY OF NEWPORT BEACH BOND NO. LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," an agreement for maintenance and/or repair services, in the City of Newport Beach, in strict conformity with the Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Agreement and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the Work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach, in the sum of Dollars ( ), lawful money of the United States of America, said sum being equal to 100% of the amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), payable by the City of Newport Beach under the terms of the Agreement; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the Work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required by the provisions of Section 9554 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 9100 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as West Coast Aborists, Inc. Page D-1 19-31 required by and in accordance with the provisions of Sections 9500 et seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement or to the Work to be performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the Agreement or to the Work or to the specifications. In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the day of , 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: la Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED West Coast Aborists, Inc. Page D-2 19-32 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) West Coast Aborists, Inc. Page D-3 19-33 EXHIBIT E CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ , being at the rate of $ thousand of the Agreement price. WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," an agreement for maintenance and/or repair services in the City of Newport Beach, in strict conformity with the Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Agreement and the terms thereof require the furnishing of a Bond for the faithful performance of the Agreement. NOW, THEREFORE, we, the Principal, and duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of ( ) lawful money of the United States of America, said sum being equal to 100% of the amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the Work, covenants, conditions, and agreements in the Agreement and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement or to the Work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive West Coast Aborists, Inc. Page E-1 19-34 notice of any such change, extension of time, alterations or additions of the Agreement or to the Work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED West Coast Aborists, Inc. Page E-2 19-35 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of }ss. On 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) West Coast Aborists, Inc. Page E-3 19-36