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HomeMy WebLinkAbout1997-11-17 City Council (26)City of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE: SUBJECT: NOVEMBER 17, 1997 CMR:465:97 RECOMMENDATION TO RESCIND AWARD OF CONTRACT TO NICCOLI LANDSCAPING DBA: THE VILLAGE GARDENER FOR 1997-98 TREE PLANTING PROJECT AND RECOMMENDATION TO AWARD CONTRACT TO THE DAVEY TREE EXPERT COMPANY FOR 1997-98 TREE PLANTING PROJECT RECOMMENDATIONS Staff recommends that Council: Rescind the award of contract to Niccoli Landscaping dba: The Village Gardener in the amount of $26,880 for 1997-98 Tree Planting Project. Approve and authorize the Mayor to execute the attached contract (Attachment C) with The Davey Tree Expert Company in the amount of $75,840 for 1997-98 Tree Planting Project. °Authorize the City Manager or her designee to negotiate and execute one or more change orders to the contract with The Davey Tree Expert Company for related, additional but unforeseen work which may develop during the project, the total value of which change orders shall not exceed $7,500. POLICY IMPLICATIONS The award of this contract is consistent with existing policies. EXECUTIVE SUMMARY Project Description The work to be performed under the contract includes the planting of street and park trees at sites throughout the City. The Work will be conducted in two phases: in fall 1997 and spring 1998. The contractor will furnish two, 2-person planting crews with appropriate vehicles and ¯ equipment each work day. CMR:465:97 Page 1 of 3 Background Invitations for Bid (IFB) were mailed on.July 28, 1997, to nine contractors. The bidding period was 22 days because the scope of work is routine and the City has bid similar projects over the past five years. A mandatory pre-bid meeting was held on August 12, 1997; three bidders attended the meeting. Bids were received from three qualified contractors on August 19, 1997, as listed on the attached bid summary (Attachment A). Bids ranged from a high of $81,600 to a low bid of $26,880. Staff reviewed all bids submitted and then interviewed the apparent lowest responsible bidder, Niccoli Landscaping dba: The Village Gardener, on August 26, 1997, to ensure that the bidder was aware of all requirements of the project and would be able to meet its obligations at the amount bid. Staff checked references supplied by the contractor for previous work and found no complaints. Staff also checked with the Contractors’ State License Board and found that the contractor has an active license on file. On September 8, 1997, as recommended by staff, the City Council awarded a contract to Niccoli Landscaping dba: The Village Gardener in the amount of $26,880 for the 1997-98 Tree Planting Project (CMR:376:97) (Attachment B). The Notice of Award and two original contracts were delivered to Niccoli Landscaping dba: The Village Gardener on September 11, 1997. The contracts were to be signed by the appropriate, company representative and returned with all documentation (including insurance certificates and bonds) within 15 business days. On October 1, 1997, Niccoli Landscaping dba: The Village Gardener failed to attend a mutually agreed upon pre-congtruction conference for the project; and the executed contracts were not returned to the City by the required date of October 2, 1997. Staff contacted Niccoli Landscaping dba: The Village Gardener on October 2, 1997, at which time the contractor advised staff that it was having difficulty obtaining the bonds required for the contract. Staff and the contractor rescheduled the pre-construction conference to October 6, 1997, to discuss execution of the contract. The contractor again failed to attend the mutually agreed upon conference and made no effort to contact the City. On October 10, 1997, after conferring with the Purchasing Division of the Administrative Services Department, staff formally notified Niccoli Landscaping dba: The Village Gardener that the City would be forced to rescind award of the contract and would retain the bid bond. Current Status The start of the City’s Fall tree planting has been delayed by approximately two months. Many planting commitments will not be met as promised. Staff recommends that the next lowest responsible bid of $75,840 submitted by The Davey Tree Expert Company, be accepted and that The Davey Tree Expert Company be declared the lowest responsible bidder. The bid is 13 percent above the staff estimate of $67,200. The CMR:465:97 Page 2 of 3 change order amount of $7,500, which equals 10 percent of the total contract, is requested because of related, additional but unforeseen work which may develop during the project. The Davey Tree Expert Company has successfully compl~ted five contracts for the City in the past 18 months, including the 1996-97 Tree Planting Project. Staff also checked with the Contractors’ State License Board and found that The Davey Tree Expert Company has an active license on file. FISCAL IMPACT Funds for this project are included in the FY 1997-98 budget. ENVIRONMENTAL ASSESSMENT This project is categorically exempt from the provisions of California Environmental Quality Act and no further environmental review is necessary. ATTACHMENTS A - Bid Summary B - CMR:376:97 C - Contract PREPARED BY: Eugene F. Segna, Coordinator, Public Works Projects DEPARTMENT HEAD REVIEW:~ GLENN S. ROBERTS Director of Public Works CITY MANAGER APPROVAL :-~~~ ~~) EIV~II-~Y HARRISON "¯Assistant City Manager CMR:465:97 Page 3 of 3 * TTACHMENT B City of Palo Alto City Manager’s Report 9 TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS AGENDA DATE: SUBJECT: SEPTEMBER 8, 1997 CMR:376:97 AWARD OF CONTRACT TO NICCOLI LANDSCAPING VBA: THE VILLAGE GARDENER FOR 1997-98 TREE PLANTING PROJECT This is a request for approval of a contract with Niccoli Landscaping dba: The Village Gardener in the mount of $26,880 for 1997-98 Tree Planting Project.. RECOMMENDATIONS Staff recommends that Council: Approve and authorize the Mayor to execute the attached contract with Niccoli Landscaping dba: The Village Gardener in the amount of $26,880 for 1997-98 Tree Planting Project. . Authorize the City Manager or her designee to negotiate and execute one or more change orders to the contract with Niccoli Landscaping dba: The Village Gardener for related, additional but unforeseen work which may develop during the project, the total value of which change orders shall not exceed $2,600. POLICY IMPLICATIONS The award of this contract is consistent with existing City policies. EXECUTIVE SUMMARY Project Description , The work to be performed under the contract includes the planting of street and park trees at sites throughout the City. The work will be conducted in two phases: in fall 1997 and spring 1998. The contractor will furnish two 2-person planting crews with appropriate vehicles and equipment each workday. Invitations fbr Bid (IFB) were mailed on July 28, 1997 to nine contractors. The bidding period was 22 days because the scope of work is routine and the City has bid similar projects over the CMR:376:97 Page 1 of 2 past five years. A mandatory pre-bid meeting was held on August 12, 1997; three bidders attended the meeting. Bids were received from three qualified contractors on August 19, 1997, as listed on the attached bid summary (Attachment A’). Bids ranged from a high of $81,600 to a low bid of $26,880. Staffhas reviewed all bids submitted and recommends that the bid of $26,880-submitted by Niccoli Landscaping dba: The Village Gardener be accepted and that Niccoli Landscaping dba: The Village Gardener be declared the lowest responsible bidder. The bid is 60 percent below the staff estimate of $67,200. The change order amount of $2,600, which equals ten percent of the total contract, is requested because of related, additional but unforeseen work which may develop during the project. Staff checked references supplied by the contractor for previous work performed by Niccoli Landscaping dba: The Village Gardener and found no significant complaints. Staff also checked with the Contractors State Liceme Board and found that the contractor has an active license on file. FISCAL IMPACT Funds for this project are included in the FY1997-98 Public Works Department operating budget. ENVIRONMENTAL ASSESSMENT This project is categorically exempt from the provisions of CEQA environmental review is necessary. ATTACHMENTS Attachment A - Bid Summary Attachment B - Contract and no further PREPARED BY: Eugene F. Segna, Coordinator, Public Works Projects DEPARTMENT HEAD REVIEW:. CITY MANAGER APPROVAL: GLENN S. ROBERTS Director of Public Works EMILY HARRISON Assistant City Manager CMR:376:97 Page 2 of 2 FORMAL CONTRACT SECTION 00500 CONTRACT (Public Works Operations) This Contract, dated , is entered into by and between the City of Palo Alto, a chartered city and a municipal corporation of the State of California (’City’), and Niccoli Landscaoino dba: The Villao~ Gardener. a sole Droorietorshio. (’Contractor’.) For and in consideration of the covenants, terms, and conditions (’the provisions’) of this Contract, City and Contractor (’the parties’) agree: ~.9.[J~. This Contract shall commence end be binding on the parties on the Date of Execution of this Contract, and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder, subject to the earlier termination of this Contract. General Scooe of Project and Work. Contractor shall furnish labor, services, materials and equipment in. connection with the construction of the Project and complete the Work in accordance with the covenants, terms and conditions of this Contract to the satisfaction of City. The Project end Work is generally described as follows: Title of Project:No.# Base Bid:$26,880.00 .Add Alternates (if any):SN/A Total Bid:$26,880.00 Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the City Clerk end are hereby incorporated by reference. For the purposes of construing, interpreting and resolving Inconsistencies between and among the provisions of this Contract, these documents end the provisions thereof are set forth in the following descending order of precedence. e=This Contract. Notice Inviting Forrnal Bids. Project Specifications: Drawings. Change Orders.-_ Bid.- Supplementary Conditions. General Conditions. Standard Drawings and Specifications (1992). Certificate of Insurance, Performance Bond, Labor & Mal!erials (Payment) Bond. Affirmative Action Guidelines and Compliance Report-. Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or ¯ the Standard Drawings and Specifications (1992). ¯. Any other document not expressly mentioned herein which is issued by City or entered into by the parties. CITY of PALO ALTO: Public Works Formal Contract (REV. 6/94)SECTION 00500-1 of B FORMAL CONTRACT SECTION 00500 iI II I ,I I I I I ComD~r~sation. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract and upon the receipt of written invoices end all necessary supporting documentation within the time set forth in the Contract Specifications and the Standard Drawings and Specifications (1992), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor’s invoices. Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance c~verage described in the Notice Inviting Formal Bids on terms end conditions end in amounts as may be required by the Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the personal property of any person performing labor or services or supplying materials or equipment under the Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 15 of this Contract. Indemnification. Contractor agrees to protect, defend, indemnify end hold City, its Council members, officers, employees, agents and representatives harmless from and against any end all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts .or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is required not to do under this Contract, or which arises from conduct for which any Law may impose strict liabiliW on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers, employees, agents or representatives. This indemnification shall extend to any and all claims, demands, or liens made or filed by reason of any work performed by Contractor under this Contract at any time during the term of this Contract, or arising thereafter. To the extent Contractor will use hazardous materials in connection with the execution of its obligations under this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City Council members, officers and employees from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract, under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § §9601-6975, as emended); the Resource Conservation and Recovery Act (42 U.S.C. §§6901-6992k, as amended); the Toxic Substances Control Ac.t (15 U.S.C. §§2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous Substance Account Act (Health & Safety Code, §§25300-25395, as amended); the Hazardous Waste Control Law (Health & Safety Code, §§25100- 25250.25, as amended); the Safe Drinking Water end Toxic Enforcement Act (Health & Safety Code, ’§ §25249.5-25249.13, as amended); the Underground Storage of Hazardous Substances Act (Health & Safety Code, § §25280-25299.7, es amended); or under any other local, state or federal law, statute or ordinance, or at common law. ~. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission ITY of PALO ALTO: Public Works Formal Contract (REV. 6194)SECTION 00500-2 of 8 FORMAL CONTRACT SECTION 00500 of City or any of its Council members, officers, employees, agents or representatives. Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the parties in the administration o.f any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract. 10. Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any Law of any public agency or official as well as with any provision of all recorded documents affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws pertaining to nondiscrimination and affirmative action in employment and hazardous materials. Bonds. As a condition precedent to CiW’s obligation to pay compensation to Contractor, and on or before the Date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under the Notice Inviting Formal Bids. 11.Reoresentations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during the course and scope of the Project and Work, Contractor represents and warrants: Any materials and eq~Jipment Which shall be used during the course and scope of the Project and Work shall be vested in Contractor; bo Any materials and equipment which shall be used during the course and scope of the Project and Work shall be merchantable and fit to be used for the particular, purpose for.which the materials are required; Ct Any labor and services rendered and materials and equipment used or employed during the course end sc.ope of the Project and Work shall be free of defects in workmanship for e period of one (1) year after the recordation of the Notice of ’Substantiai Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder; Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained" by Contractor for and in behalf of City. Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and correct at the time such information is submitted or made available to the City; Contractor’h~s not colluded, conspired, or agreed, directly or indirectly, with any person in regard ¯ to the terms and conditions of Contractor’s Bid, except as may be permitted by the Notice Inviting Formal Bids; CITY of PALO ALTO: Public Works Formal Contract |REV. 6/94)SECTION 00500-3 of 8 FORMAL CONTRACT SECTION 00500 Contractor has the power and authority to enter into this Contract with City, that the individual executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract shall be executed, delivered and performed pursuant to the power and authority conferred upon the person or persons authorized to bind Contractor; h=Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project Manager or any other person who has directly contributed to City’s decision to award the contract to Contractor; There are no unresolved claims or disputes between Contractor and City which would materially affect Contractor’s ability to perform under the Contract; Contractor has furnished and will furnish true end accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City ¯ from time to time during the term of this Contract; 12. 13. Contractor and any person performing labor and services under this Project are duly licensed by the State of California as required by California Business & Professions Code Section 7028, as amended; and Contractor has fully examined and inspected the Project site and has full knowledge of the physical conditions of the Project site. Assianment. This Contract and the performance required hereunder is Personal to Contractor, and it shall not be assigned by Contractor. Any attempted assignment shall be null and void. Claims of Contractor. All claims pertaining to extra.Work, additional charges, or delays within the Contract Time or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or registered mail within ten (10} Days after the claim arose or within such other time as may be permitted or required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim to City. 14. 15. ~g~. During the term of this Contract and for s pedod of not less than three (3) years after the expiration or earlier termination of this Contract, City shall have the right to .audit Contractor’s Project-related and Work-related wdtings end business records, as such terms are defined in California Evidence Code Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours, during the regular business hours of City. ~. All agreements, appointments, appPovals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States mail, postage prepaid, (3) sent by pdvate express delivery service, or (4) in the case of ¯ facsimile transmission, if. sent to the telephone FAX number set forth below during regular business hours of the.receiving party and followed within two (2) Days by delivery of a hard copy of the material sent by facsimile tPansmission, in accordance with (11, (2) or (3) above. Personal service shall include, without limitation, service by delivery and service by facsimile transmission. ;ITS. of PALO ALTO: Public Works Formal Contract (REV. 6/94)SECTION 00500-4 of 8 FORMAL CONTRACT To City:City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 SECTION 00500 Copy to:City of Palo Alto Department of Public Works 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 TEL" (650) 496-6974 FAX: (650) 652-9289. To Contractor:. ATT. David Sandage, Project Manager Niccoli Landscaping dba: The Village Gardener 2975 Fair Oaks Avenue Redwood City, CA 94063 TEL: (650) 306-9449 FAX: (650) 306-9473 16. 17. .~DroDriation oi’ C~ Funds. This contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Palo Alto. Any charges hereunder for labor, services, rnatedals and equipment may accrue only after such expenditures have been approved in advance in writing in accordance with applicable Laws. This Contract shall terrninate wi~out penalty (I) at the end of any ~scal year in the event that funds are not appropriated for the following fiscal year, or (ii) at any time .within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16 shall control in the event of a conflict with any other provision of.this Contract. Miscellaneous. ao Bailee Disclaimer, The par’des understand and agree that City does. not purport to be Contractor’s bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor. Consent. Whenever in this Contract the approval or consent of a party is required,, such approval or consent shall be in writing and shall be executed by a parson having the express authority to grant such approval or consenL do Controlling Law. The parties agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of California. ¯Definitions. The defini’dons and terms set forth in Section I of the Standard Drawings and specifications (1992) of this Contract are incorporated herein by mferance. CITY of PALO ALTO: Public Works Formal Contract (REV, 6/94|SECTION 00500-5 of 8 FORMAL CONTRACT SECTION 00500 Force Majeure. Neither party shall be deemed to be in default on account of an.y delay or failure to perform its obligations under this Contract which directly results from an Act of God or an act of a superior governmental authority. Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract. go Incorporation of Documents. All documents constituting the Contract documents described in Section 3 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part of this Contract. Integration. This Contract and any amendments hereto between the parties constitute the entire agreement between the parties concerning the Project and Work, and there are no other pdor oral or wdtten agreements between the parties that are not incorporated in this Contract. Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless such modification is agreed to in writing and signed by the parties. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Contract shall define or otherwise control, establish, or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and cQ.nditions. ko Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other wdting, which authorizes any director, officer or other employee or partner to act for or in behalf of Contractor or which authorizes Contractor to enter into this Contract. : Severability. If a court of competent jurisdiction" finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect. Status of Contractor. In the exercise of dghts and obligations under" this Contract, Contractor acts as an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to any dghts and benefits accorded or accruing to the City Council members, officers or employees of City, and Contractor expressly waives any and all claims to such dghts and benefits. Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply to and bind, the successors end assigns of the parties. Oo "lima of the Essence. Time is of the essence of this Contract and each of its provisions. In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be extended to the. followingBusiness Day. Venue. In ~e event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Santa Clam in the City of San Jose or in the United States District Court for the Northern District of California in the City of San Jose. CITY of PALO ALTO: Public Works Formal Contract (REV. 6/94)SECTION 00500-6 of 8 FORMAL CONTRACT SECTION 00500 Recovery of costs. The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasonable costs, including reasonable attorney’s fees, incurred or expended in connection with such action against the non-prevailing party. IN WITNESS VVHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of Palo Alto, County of Santa Clara, State of California on the date first stated above. ATTEST:CITY OF PALO ALTO City Clerk APPROVED: City Manager Director of Public Works Director of Administrative Services By: Its: Mayor CONTRACTOR: By: Name: T=tle: Taxpayer I.D. No. Manager, Contract Administration APPROVED AS TO FORM: Senior Asst. City Attorney CITY of PALO ALTO: Public Works Formal Contract {REV. 6/94|SECTION 00500-7 of 8 FORMAL CONTRACT SECTION 00500 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF COUNTY OF ) " On , before me, ........, a notary public in and for said County,personally appeared # personally known to me (or 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand end official seal. END OF SECTION CITY of PALO ALTO: Public_Works Formal Contract (REV. 6194)SECTION 00500-8 of 8 ATTACHMENT C FORMAl. CONTRACT SECTIOb~ 500 CONTRACT No. (Public Works) This Contract, number , dated , , is entered into by and between the City of Palo Alto, a chartered city and a municipal corporation of the State of California ("City") , and The ’Davey Tree Expert ,Company, an Ohio corporation, ("Contractor"), For and in consideration of the covenants, terms, and conditions ("the provisions") of this Contract, City and Contractor ("the parties") agree: Term. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract, and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder, subject to the earlier termination of this Contract. This Contract may be terminated for convenience by the City upon ten (10) days’ prior written notice. General Scope of Project. and Work. Contractor shall furnish labor, services, materials and equipment in connection with the construction of the Project and complete the Work in accordance with the covenants, terms and conditions of this Contract to the satisfaction of City. The Project and Work is generally described as follows: Title of Project: Total Bid: 1997-98 Tree Plantina Proiect No. 98988 $75,840.00 Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the City Clerk and are hereby incorporated by reference. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, these documents and the provisions thereof are set forth in the following descending order of precedence. f. g. h. j. k, This Contract. Notice Inviting Formal Bids. Project specifications. Drawings. Change Orders. Bid. Supplementary Conditions. General Conditions. Standard Drawings and Specifications (1992). Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond. Affirmative Action Guidelines and Compliance Report. Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the Standard Drawings and Specifications (1992). Any other document not expressly mentioned herein which is issued by City or entered into by the parties. Compensation. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract CITY OF PALO ALTO: Public Works Formal Contract ( 1997-98 Tree Planting Project )SECTION 500-1 OF 8 FORMAL CONTRACT SECTION 500~1 ,11 II III I I and upon the receipt of written invoices and all necessary supporting documentation within the time set forth in the Contract Specifications and the Standard Drawings and Specifications (1992), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor’s invoices. In.surance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance coverage described in the Notice Inviting Formal Bids on terms and conditions and in amounts as may be required by the Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the personal property of any person performing labor or services or supplying materials or equipment under the Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 15 of this Contract. Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is required not to do under this Contract, or which arises from conduct for which any Law may impose strict liability on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers, employees, agents or representatives. This indemnification shall extend to any and all claims, demands, or liens made or filed by reason of any work performed by Contractor under this Contract at any time during the term of this Contract, or arising thereafter. To the extent Contractor will use hazardous materials in connection with the execution of its obligations under this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City Council members, officers and employees from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract, under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § §9601-6975, as amended); the Resource Conservation and Recovery Act (42 U.S.C. § §6901-6992k, as amended); the Toxic Substances Control Act (15 U.S.C. §§2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous Substance Account Act (Health & Safety Code, §§25300-25395, as amended); the Hazardous Waste Control Law (Health & Safety Code, §§25100- 25250.25, as amended); the Safe Drinking Water and Toxic Enforcement Act (Health & Safety Code, § §25249.5-25249.13, as amended); the Underground Storage of Hazardous Substances Act (Health & Safety Code, §§25280-25299.7, as amended); or under any other local, state or federal law, statute or ordinance, or at common law. Assumption of Risk. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of City or any of its Council members, officers, employees, agents or representatives. Public Works Formal Contract ( 1997-9~Tree Planting Project )’SECTION 500-2 OF 8 FORMAL CONTRACT SECTION 500 8. Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the parties in the administration of any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract. Comoliance with.Lawso Contractor shall comply with all Laws now in force or which may hereafter be in force pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any Law of any public agency or official as well as with any provision of all recorded documents affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws pertaining to nondiscrimination and affirmative action in employment and hazardous materials. 10. 11. Bonds. As a condition precedent to City’s obligation to pay compensation to Contractor, and on or before the Date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under the Notice Inviting Formal Bids. Representations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during the course and scope of the Project and Work, Contractor represents and warrants: ao Any materials and equipment which shall be used during the course and scope of the Project and Work shall be vested in Contractor; Any materials and equipment which shallbe used during the course and scope of the Project and Work shall be merchantable and fit to be used for the particular purpose for which the materials are required; C=Any labor and’services rendered and materiais and equipment used or employed during the course and scope of the Project and Work shall be free of defects in workmanship for a period of one (1) year after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder; Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by Contractor for and in behalf of City. fo Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and correct at the time such information is submitted or made available to the City; Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the terms and conditions of Contractor’s Bid, except as may be permitted by the Notice Inviting Formal Bids; Contractor has the power and authority to enter ’into this Contract with City, that the individual executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract CITY OF PALO ALTO: Public Works Formal Contract ( 1997-98 Tree Planting Project )SECTION 500-3 OF 8 FORMAL CONTRACT SECTION 500 shall be executed, delivered and performed pursuant to the power and authority conferred upon the person or persons authorized to bind Contractor; ho Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project Manager o.r any other person who has directly contributed to City’s decision to award the contract to Contractor; There are no unresolved claims or disputes between Contractor and City which would materially affect Contractor’s ability to perform under the Contract; Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City from time to time during the term of this Contract; Contractorand any person performing labor and services under this Project are duly licensed by the State of California as required by California Business & Professions Code Section 7028, as amended; and 12. 13. Contractor has fully examined and inspected the Project site and has full knowledge of the physical conditions of the Project site. Assianment. This Contract and the performance required hereunder is personal to Contractor, and it shall not be assigned by Contractor. Any attempted assignment shall be null and void. Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim to City. 14. 15. Audits by City. During the term of this Contract and for a period of not less than three (3) years after the expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related and Work-related writings and business records, as such terms are defined in California Evidence Code Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours, during the regular business hours of City. Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving party and followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery and service by facsimile transmission. ~l’rY O(PALO ALTO: Public Works Formal Contract ( 1997-98 Tree Planting Project | .....SECTION 500-4 OF 8 FORMAL CONTRACT To City: Copy to: To Contractor: City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 SECTION 500 City of Palo Alto Public Works Department 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Phone: (650) 496-6905 FAX: (650) 852-9289 ATTN.: David Sandage, Project Manager The Davey Tree Expert Company 1055 Commercial Court San Jose, CA 95112 Phone: (408) 453-3389 FAX: (408) 453~2940 ATTN.: Mike Weber 16.Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may accrue only after such expenditures have been approved in advance in writing in accordance with applicable Laws. This Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (ii) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16 shall control in the event of a conflict with any other provision of this Contract. 17.Miscellaneous.~ Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor’s bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor. Consent. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. Controlling Law. The parties agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of California. CITY OF PALO ALTO: Public Works Formal Contract ( 1997-98 Tree Planting Project )SECTION 500-5 OF 8 FORMAL CONTRACT SECTION 500 d.Definitions. The definitions and terms set forth in Section 1 of the Standard Drawings and Specifications (1992) of this Contract are incorporated herein by reference. F~rce Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Contract which directly results from an Act of God or an act of a superior governmental authority. Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract. Incorporation of Documents. All documents constituting the Contract documents described in Section 3 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part of this Contract. Integration. This Contract and any amendments hereto between the parties constitute the entire agreement between the parties concerning the Project and Work, and there are no other prior oral or written agreements between the parties that are not incorporated in this Contract. Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless such modification is agreed to in writing and signed by the parties. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Contract shall define or otherwise control, establish, or limit the performance required or permitted o~ to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other writing, which authorizes any director, officer or other employee or partner to act for or in behalf of Contractor or which authorizes Contractor to enter into this Contract. Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect. Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of City, and Contractor expressly waives any and all claims to such rights and benefits. Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties. Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If tlie time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be extended to the following Business Day. CITY OF PALO ALTO: Public Works Formal Contract ( 1997-98 Tree Planting Project )SECTION 500-6 OF 8 FORMAL CONTRACT SECTION 500 p.Venue. In the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Santa Clara in the City of San Jose or in the United States District Court for the Northern District of California in the City of San Jose. Recovery of costs. The prevailing party in any action brought to enforce, the terms of this Contract or arising out of this Contract may recover its reasonable costs, including reasonable attorney’s fees, incurred or expended in connection with such action against the non-prevailing party. IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of Palo Alto, County of Santa Clara, State of California on the date first stated above. ATTEST:CITY OF PALO ALTO City Clerk APPROVED: By: Its: Mayor CONTRACTOR: City Manager By: Name: Director of Public Works Title: Director of Administrative Services Taxpayer I.D. No.: Manager, Contract Administration (insurance review) APPROVED AS TO FORM: Senior Asst.. City Attorney CITY OF PALO ALTO: Public Works Formal Contract ( 1997-98 Tree Planting Project )SECTION 500-7 OF 8 FORMAl. CONTRACT SECTION 500 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , before me, for said County, personally appeared , a notary public in and personally known to me (or 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) END OF SECTION CITY OF PALO ALTO: Public Works Formal Contract (’ 1997-98 Tree Planting Project SECTION 500-8 OF 8