CITY COUNCIL: Resolution for Grid Pruning Project Contract to West Coast Arborists, Inc. (WCA)

Meeting Date: August 5, 2008
Prepared by: Mike Branson

City Council
Agenda Item Summary

Name: Consideration of a Resolution authorizing the establishment of a cooperative purchasing agreement with the City of Monterey for a grid pruning project and award of the contract for the project to West Coast Arborists, Inc. (WCA) in an amount not to exceed $41,088.

Description: Grid pruning involves safety and structural pruning of public trees. In the FY 2008-09 budget, $41,088 was allocated for this Forestry Division project in
Account # 01-78053. A cooperative purchase agreement with WCA is based on the competitive bid process and contract awarded for tree maintenance by the City of Monterey, which will provide the City of Carmel-by-the-Sea with an efficient, low-cost resource for tree pruning and related services.

Overall Cost:
City Funds: $41,088 budgeted under Acct. 01-78053
Grant Funds: None

Staff Recommendation: Adopt a Resolution approving a cooperative purchasing agreement for a grid pruning project and award the contract for the project to WCA in an amount not to exceed $41,088.

Important Considerations: WCA has worked for Carmel-by-the-Sea and several local cities including Monterey, Salinas, Pacific Grove, and Soledad. The rates and terms
offered to Carmel by WCA are based on the City of Monterey “Tree Maintenance
Open End Contract” currently in effect. Cooperative purchase agreements and
contract awards for public works projects are allowed under sections 3.12.170 and
3.12.430 of the Municipal Code.

Decision Record: The City Council authorized a similar contract under a cooperative purchase agreement with WCA in FY 2007-2008.

Reviewed by:


______________________________ _________________
Rich Guillen, City Administrator Date


CITY OF CARMEL-BY-THE-SEA
GRID PRUNING OF URBAN FOREST TREES
CONTRACT

THIS CONTRACT is made and entered into on the 5th day of August, 2008, by and between the City of Carmel-by-the-Sea, Monterey County, State of California, hereinafter called “City”, West Coast Arborists, hereinafter called “Contractor”.

WITNESSETH: That City and Contractor have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows:

1. That for and in consideration of the covenants and agreements hereinafter contained on the part of City, and the sums of money hereinafter designated to be paid to Contractor by City in the manner and form as shown in the attached specifications, Contractor hereby covenants and agrees to, to furnish all labor, tools, appliances, equipment, plant and transportation, and any and all other expenses necessary or incidental to the performance of certain work hereinafter specified and to complete the public work herein referred to for City, for the schedule and items awarded, all as more particularly and in detail set forth in
those certain specifications filed in the office of the City Administrator, and identified by the signatures of the parties to this agreement. True copies of the contract documents together with all modifications incorporated in those documents before their execution, are hereunto annexed by and reference thereto incorporated herein and made a part hereof as though in this document fully set forth. The contract documents shall consist of this Contract, (6 pages); Specifications (5 pages), and Exhibit A (3 pages).

2. Contract Price: Contractor agrees to receive and accept and City agrees to pay the proposal prices as full compensation for furnishing all materials and for doing all the work embraced and contemplated in this agreement and as set forth in the Contractors proposal submitted to the City of Carmel-by-the-Sea, on the 23rd day of April, 2008 and the true copy thereof attached, and for all loss or damage arising out of the nature of said work, or from the action of the elements from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the risk connected with the work, and for well and faithfully completing the work and the whole thereof, in the manner and according to the said
specifications and the requirements of the Project Manager (City representative) under them, to wit: the Contract price of $41,088.00 as set forth in the Contractor’s Proposal of Bidder for the work awarded under this agreement.
Contractor further agrees to plan the work and to prosecute it with such diligence that said work, and all of it, shall be completed no later than 30 June 2009 after the execution of this Contract on behalf of the City.

Upon completion, the Contractor shall present a Statement of Compliance, if applicable. Attached thereto there shall be copies of payroll certification records indicating the prevailing hourly rate of per diem wages for this locality (Area 2) pursuant to Labor Code Section 1773.2.

Pursuant to SB222, City is required to withhold from any progress payments owed to a contractor any amount that has been forfeited as penalties, or as wages owed to employees who have not been paid the prevailing wage for work performed. This allows the intervention by the Division of Labor Standards Enforcement, which is headed by the State Labor Commission, in a contractor’s lawsuit for recovery of amounts withheld by an awarding body. All withheld wages and penalties will be transferred to the Labor Commissioner for disbursement in those cases where a contractor fails to bring a lawsuit for amounts withheld within ninety (90) days after completion of the public works contract and formal acceptance of the job by the awarding body. The Labor Commissioner is then permitted to intervene in any lawsuit brought by
the contractor against an awarding body for recovery of amounts withheld.
Certified payroll records must be on the forms provided by the Division of Labor or contain the same information required on the Division’s form.

3. Payment. Contractor shall be paid for the work within thirty (30) days of satisfactory completion. Notice of Completion shall be given to City in writing. If any work is not satisfactorily completed, City shall have the right to withhold from the payment a sum equal to one and one-half times the estimated costs of satisfactorily completing the work. City shall have the right to use said sum to pay
Contractor for satisfactorily completing the work, or upon refusal of Contractor to satisfactorily complete the work, to pay another contractor to do so. Any money remaining after satisfactory completion shall be paid to Contractor, less any sums owed City by Contractor. Contractor shall have the right to substitute securities
for any monies withheld by City to ensure performance under this agreement pursuant to Government Code Section 4590.

4. The parties agree that this Contract shall be binding upon themselves, their heirs, executors, administrators, successors and assignees and hereby agree to the full performance of the covenants herein contained.

5. No interest in this Contract shall be transferred by Contractor to any other party, and any such transfer shall cause annulment of this Contract, so far as City is concerned. All rights of action, however, for any breach of this contract are reserved to City.

6. Supplies. Contractor shall keep harmless, indemnify and defend City, its officers and agents, on account of articles supplied by Contractor under this Contract, of which it is not patentee or which it is not entitled to use or sell.

7. Hold Harmless. Contractor agrees to hold harmless, indemnify and defend City, its
elected officials, agents, officers, and employees thereof, including the Project Manager (City’s representative), while acting within the scope of their duties from and against any and all liability, claims, damages and cost of defense arising out of Contractor’s performance of the work described herein including injuries and damages arising from negligence of City or others except for injuries and damages arising from sole negligence of City. Contractor shall require any and all subcontractors to conform to the provisions of this clause and provide proof of all required insurance prior to commencing any work.

8. Warranties. Contractor shall immediately correct all defective workmanship discovered within one year after acceptance of final payment by Contractor, and shall hold harmless, indemnify and defend City against all loss and damage occasioned by any such defect, discovered within said year, even though the damage or loss may not be ascertained until after the expiration thereof.

9. Independent Contractor. While engaged in carrying out the terms and conditions of this Agreement, Contractor is an independent contractor and not an officer, employee or agent of City.

Contractor shall not at any time or in any manner represent that it or any of its agents or employees is in any manner, an agent or employee of City.

10. Contractor shall provide:
A. Workers’ Compensation Insurance. Contractor shall maintain adequate Workers’
Compensation insurance in the State of California, and shall provide employers general liability insurance for the benefit of its employees and the employees of any subcontractor under it, not protected by such compensation laws, and proof of such insurance, satisfactory to City, shall be given by filing certificates of
such insurance with City, in a form satisfactory to City. If such insurance is underwritten by any agency other than the State Compensation Fund, such agency shall be a company authorized to do business in the State of California. Contractor shall not commence work until certified proof of insurance has been provided to, and accepted by, City.

B. Public Liability and Property Damage Insurance. Contractor shall take out and maintain during the life of this Contract such public liability and property damage insurance as shall protect it and any subcontractor performing work covered by this contract from claims for personal injury or property damages which may arise because of the nature of the work or from operations under this contract, whether such
operations be by Contractor or by any subcontractor or anyone directly or indirectly employed by either of them. The Public Liability, Personal Injury and Property Damage Insurance shall also directly protect the City, its officers, agents and employees, as well as the Contractor and its subcontractors, and all insurance
policies issued hereunder shall so state:

The City of Carmel-by-the-Sea, its elected officials, officers, agents and employees shall be specifically named, by written endorsement to the Certificate of Insurance, as additional insured for this project under such insurance policy and Contractor shall provide City with a certificate of such insurance for the term of this contract. The amounts of such insurance shall be as follows: One Million Dollars ($1,000,000.00).

Said insurance shall be with a company acceptable to City and shall be primary over any other valid or collectible insurance City may have. The insurance carrier shall provide City with a certificate evincing the existence of the insurance and specifying compliance with these terms and the issuing company shall agree to provide City with thirty (30) days prior written notice of cancellation or non-renewal of the policy.

Contractors liability insurance and automobile liability insurance covering all vehicles used in the performance of the Contract providing for public liability, personal injury and property damage insurance with limits of the not less than one million dollars ($1,000,000) combined single limit.

11. Safety. Contractor shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety.

12. Liquidated Damages. In consideration of liquidated damages to City, occasioned by
Contractor not completing the work within the time set for Contractors performance, City having to prepare termination notices, prepare specifications to complete the work, relet bids, and experience the general delay of not having the work completed in a timely fashion, the parties agree that it would be extremely difficult
and impractical to fix actual damages and that Contractor agrees if the Contract is not completed within the time period specified in the Contract, it will pay to City the sum of one-hundred dollars ($100) each and every calendar days delay in finishing the work in excess of the number of working days prescribed in the Contract, said sum of liquidated damages to be deducted from the amount due the Contractor for work completed.

13. Conflicts in Documents. This Contract and the contract documents are intended to
constitute one complete and consistent contract. Should any conflict exist, Contractor shall secure written instructions from Project Manager (City’s representative) before proceeding.

14. Protecting Trees. Contractor acknowledges that it is familiar with City’s policies for the protection of trees and agrees to take all reasonable precautions to protect trees not subject to trimming or removal from damage, which might be caused during the work. (Refer to the Municipal Code of the City of
Carmel-by-the-Sea, Chapter 12.28)

15. Inspection. City shall at all times have the right to inspect the work and materials. Contractor shall furnish all reasonable aid and assistance required by City for the property examination of the work and all parts thereof. Such inspection shall not relieve Contractor from any obligation to perform said work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.

16. Conflict of Interest. Contractor covenants that neither it nor any person working for it or with it to provide the services called for by this Contract has any interest, nor shall any person acquire any interest, directly or indirectly, which would conflict in any manner or degree with the performance of the services hereunder. Contractor further covenants that in the performance of this Contract, no person having such interest shall be employed by Contractor.

17. Nondiscrimination. Contractor agrees that in the performance of this Contract or any subagreement hereunder, neither Contractor nor any person acting on Contractors behalf shall refuse to employ or refuse to continue in any employment any person on the basis of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sexual preference, sex or age.
Harassment in the workplace is not permitted in any form. Contractor further agrees to comply with all laws with respect to employment when performing this Contract.

18. Suspension, Abandonment or Termination of Work. It is mutually agreed that City may suspend, abandon in whole or in part, or terminate this Contract upon five (5) days written notice to Contractor, in which case City shall pay Contractor for services rendered and work completed at the time of suspension.

19. Changes. Any changes or amendments to this Contract shall be written, consecutively numbered, change orders. City may, from time to time, amend or modify the scope of the work to be performed hereunder.

20. Disputes. Disputes and other matters in question between Contractor and City’s
representative relating to this Contract shall be referred to the City Administrator or his duly authorized representative, who will render a decision within a reasonable period of time.

21. Claims. Claims for time extensions or cost increases from Contractor shall be considered valid only if Contractor notifies the City Representative of any such claim in writing within five (5) working days from the date of the circumstances allegedly justifying the claim, unless otherwise stated in the Contract specifications. The formal, written claim shall be submitted to the City representative within ten (10) working days of the notification date, or no later than fifteen (15) days from the date of the circumstances allegedly justifying the claim. The City representative may negotiate the claim with Contractor and render a
decision in writing. Claims not resolved by the City representative may be appealed to the City Administrator. An appeal to the City Administrator shall be submitted, in writing, within five (5) working days from Contractor’s receipt of written notice from the City representative that the claim has been rejected.

The City Administrator’s decision shall be final. Acceptance of a final contract payment by Contractor shall constitute a waiver of any further claims by it, except those previously made in writing and identified by Contractor as unsettled at the time of application for payment.

22. Notice. Any notice or notices required or permitted to be given pursuant to this Contract may be personally served on the other party giving such notice or may be served by Certified Mail, Return Receipt Requested, to the following addresses:
City Contractor
Heidi Burch West Coast Arborists
City Clerk 2200 E. Via Burton Street
City of Carmel-by-the-Sea Anaheim, CA 92806
Post Office Box CC
Carmel-by-the-Sea, CA 93921

23. Contractor’s License. Contractor warrants and declares that its California Contractor’s license number #366764 (B-49/C-61 & C-27) is valid, and that its expiration date is __________.

24. Business License. The Contractor’s Carmel-by-the-Sea business license number is 19983; with an expiration date of 06/30/2009.

25. Attorneys Fees. If either party hereto should bring any suit against the other party hereto (formal judicial proceeding, mediation or arbitration), for the breach of any term, covenant, condition or obligation herein contained to be kept, by such other party, for the recovery of any sum due hereunder, or to recover possession of the premises, or for any summary action for forfeiture of the Lease or to prevent
further violations of any of the terms, covenants, conditions or obligation, or for any other relief then, and in that event, the case shall be handled in Monterey County, California, and the prevailing part in such suit or summary action shall be entitled to a reasonable attorneys fee to be fixed by the judge, mediator or arbitrator hearing the case and such fee shall be included in the judgment, together with all costs.

Dated: __________________, 2008 CONTRACTOR
By:
(Typed or Printed Name) (Signature)
(Title)
Recommended By:

Mike Branson, City Forester
Dated: _____________________, 2008 CITY OF CARMEL-BY-THE-SEA, a Municipal Corporation,
ATTEST:


By:
Heidi Burch, City Clerk Rich Guillen, City Administrator


CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION 2008-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA AUTHORIZING THE EXECUTION OF A CONTRACT WITH WEST COAST ARBORISTS, INC. FOR THE GRID PRUNING OF URBAN FOREST TREES IN AN AMOUNT NOT TO EXCEED $41,088

WHEREAS, $41,088 was budgeted for grid pruning of urban forest trees; and

WHEREAS, the City may take advantage of a cooperative purchasing agreement, as
allowed per Municipal Code sections 3.12.170 and 3.12.430, because the City of Monterey conducted a competitive bid process for a similar project; and

WHEREAS, West Coast Arborists, Inc. was the low bidder and its contract was renewed for FY 2008-09.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES:

1. Authorize the City Administrator to execute a contract with West Coast Arborists, Inc., for tree maintenance in an amount not to exceed $41,088.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 5th day of August 2008, by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
SIGNED,

________________________________
Heidi Burch, City Clerk

ATTEST:

___________________________
SUE McCLOUD, MAYOR