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Agreement for Services – BrightView Tree Company
ATTACHMENT 1
AGREEMENT FOR SERVICES
THIS AGREEMENT is dated for identification this 5 th of June 2018 and is made by and between
TOWNAOFALOSAG TOS,AaACaliforniaAmunicipalAcorporation,A(“Town”)AandA BrightView Tree
Company ,A(“ServiceAProvider”),AwhoseA address is 530 Aldo Avenue, San Jose, CA 95054 . This
Agreement is made with reference to the following facts.
I. RECITALS
1.1 The Town desires to engage Service Provider to provide tree trimming maintenance
services.
1.2 The Service Provider represents an d affirms that it is willing to perform the desired work
pursuant to this Agreement.
1.3 Service Provider warrants it possesses the distinct professional skills, qualifications,
experience, and resources necessary to timely perform the services described in this
Agreement. Service Provider acknowledges Town has relied upon these warranties to
retain Service Provider.
II. AGREEMENT
2.1 Scope of Services . Service Provider shall provide services as described in that certain
Proposal sent to the Town on A pril 25 , 2018, which is hereby incorporated by reference
and attached as Exhibit A.
2.2 Term and Time of Performance . The effective date of this Agreement shall begin on July 1,
2018 and will continue through June 30, 202 3 , subject to appropriation of funds,
notwithstanding any other provision in this agreement.
2.3 Compliance with Laws . The Service Provider shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. Service Provider
represe nts and warrants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for Service Provider to practice
its profession. Service Provider shall maintain a Town of Los Gatos business license
pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility . Service Provider shall be responsible for employing or engaging all
persons necessary to perform the services under this Agreement.
2.5 Information/Report Handling . All documents furnished to Service Provider by the Town
and all reports and supportive data prepared by the Service Provider under this Agreement
areAtheATown’sApropertyAandAshallAbeAdeliveredAtoAtheATownAuponAtheAcompletionAofA
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services or at the Town's written request. All reports, information, data, and exhibits
prepared or assembled by Service Provider in connection with the performance of its
services pursuant to this Agreement are confidential until released by the Town to the
public, and the Servi ce Provider shall not make any of the these documents or information
available to any individual or organization not employed by the Service Provider or the
Town without the written consent of the Town before such release. The Town
acknowledges that the r eports to be prepared by the Service Provider pursuant to this
Agreement are for the purpose of evaluating a defined project, and Town's use of the
information contained in the reports prepared by the Service Provider in connection with
other projects shal l be solely at Town's risk, unless Service Provider expressly consents to
such use in writing. Town further agrees that it will not appropriate any methodology or
technique of Service Provider which is and has been confirmed in writing by Service
Provider to be a trade secret of Service Provider.
2.6 Compensation . Compensation for services shall not exceed $247,000 for the first year ,
inclusive of all costs. Payment shall be based upon Town approval of each task.
Compensation for years two through five of this agreement shall not exceed $100,000 and
shall be adjusted upward annually for the remaining term of this agreement by the
change, if any, in the San Francisco – Oakland – San Jose Metropolitan Area Consumer
Price Index for All Urban Consumers, all items (CPI). The adjustment shall be based upon
the CPI published on December 31 of the preceding year. If the CPI indicates a downward
adjustment, compensation would remain at the base amount of $100 ,000.
2.7 F ailure to Perform . It is mutually agreed by SERVICE PROVIDER and TOWN that in the
event that performance of the work by SERVICE PROVIDER under this Agreement is not
completed as scheduled, TOWN will suffer damages and will incur other costs and
expenses o f a nature and amount which is difficult or impractical to determine. The
Parties agree that by way of ascertaining and fixing the amount of damages, costs and
expenses, and not by way of penalty, SERVICE PROVIDER shall pay to TOWN the sum of
one hundred dollars ($100.00) per location per scheduled service in liquidated damages
for every missed service beyond three missed services in a month in addition to reducing
the monthly payment by the cost of that service. In the event that the liquidated damages
a re not paid, SERVICE PROVIDER agrees that TOWN may deduct the amount of unpaid
damages from any money due or that may become due to SERVICE PROVIDER under this
Agreement.
2.8 Schedule . Service Provider shall provide a schedule to the Town prior to beginn ing work.
The schedule shall identify dates of service for each location. Schedule changes shall be
approved by the Town with 24 -hour notice. Each missed location shall be considered a
failure to perform, unless the contractor provides advance notice of schedule change.
2.9 Billing . Billing shall be monthly by invoice within thirty (30) days of the rendering of the
service and shall be accompanied by a detailed explanation of the work performed by
whom at what rate and on what date. Also, plans, spe cifications, documents or other
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pertinent materials shall be submitted for Town review, even if only in partial or draft
form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be
addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031 -0655
2.10 Availability of Records . Service Provider shall maintain the records supporting this billing
for not less than three years following completion of the work under this Agreement.
Service Provider shall make these records available to authorized personnel of the Town at
the Service Provider offices during business hours upon written request of the Town.
2.11 Assignability and Subcontracting . The servic es to be performed under this Agreement are
unique and personal to the Service Provider. No portion of these services shall be assigned
or subcontracted without the written consent of the Town.
2.12 Independent Service Provider . It is understood that th e Service Provider, in the
performance of the work and services agreed to be performed, shall act as and be an
independent Service Provider and not an agent or employee of the Town. As an
independent Service Provider, he/she shall not obtain any rights to retirement benefits or
other benefits which accrue to Town employee(s). With prior written consent, the Service
Provider may perform some obligations under this Agreement by subcontracting but may
not delegate ultimate responsibility for performance or assign or transfer interests under
this Agreement. Service Provider agrees to testify in any litigation brought regarding the
subject of the work to be performed under this Agreement. Service Pr ovider shall be
compensated for its costs and expenses in preparing for, traveling to, and testifying in such
matters at its then current hourly rates of compensation, unless such litigation is brought
by Service Provider or is based on allegations of Serv ice Provider's negligent performance
or wrongdoing.
2.13 Conflict of Interest . Service Provider understands that its professional responsibilities are
solely to the Town. The Service Provider has and shall not obtain any holding or interest
within the Town of Los Gatos. Service Provider has no business holdings or agreements
with any individual member of the Staff or management of the Town or its representatives
nor shall it enter into any such holdings or agreements. In addition, Service Provider
war rants that it does not presently and shall not acquire any direct or indirect interest
adverse to those of the Town in the subject of this Agreement, and it shall immediately
disassociate itself from such an interest, should it discover it has done so and shall, at the
Town's sole discretion, divest itself of such interest. Service Provider shall not knowingly
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and shall take reasonable steps to ensure that it does not employ a person having such an
interest in this performance of this Agreement. If after employment of a person Service
Provider discovers it has employed a person with a direct or indirect interest that would
conflict with its performance of this Agreement Service Provider shall promptly notify
Town of this employment relationship, and shall, at the Town's sole discretion, sever any
such employment relationship.
2.14 Equal Employment Opportunity . Service Provider warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither Service Provider nor its subService Providers do and neither shall
discriminate against perso ns employed or seeking employment with them on the basis of
age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental
disability, national origin, religion, or medical condition, unless based upon a bona fide
occupational qual ification pursuant to the California Fair Employment & Housing Act.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Service Provider agrees to have and maintain, for the duration of the
contract, General Liability insurance policies i nsuring him/her and his/her
firm to an amount not less than: one million dollars ($1,000,000) combined
single limit per occurrence for bodily injury, personal injury and property
damage.
ii. Service Provider agrees to have and maintain for the duration o f the
contract, an Automobile Liability insurance policy ensuring him/her and
his/her staff to an amount not less than one million dollars ($1,000,000)
combined single limit per accident for bodily injury and property damage.
iii. Service Provider shall p rovide to the Town all certificates of insurance, with
original endorsements effecting coverage. Service Provider agrees that all
certificates and endorsements are to be received and approved by the
Town before work commences.
General Liability:
i. The Town, its officers, officials, employees and volunteers are to be covered
as insured as respects: liability arising out of activities performed by or on
behalf of the Service Provider; products and completed operations of
Service Provider, premises owned or used by the Service Provider.
ii. The Service Provider's insurance coverage shall be primary insurance as
respects the Town, its officers, officials, employees and volunteers. Any
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insurance or self -insurances maintained by the Town, its officers, of ficials,
employees or volunteers shall be excess of the Service Provider's insurance
and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Town, its officers, offic ials, employees or
volunteers.
iv. The Service Provider's insurance shall apply separately to each insured
against whom a claim is made, or suit is brought, except with respect to the
limits of the insurer's liability.
3.2 All Coverages . Each insurance policy required in this item shall be endorsed to state that
coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt reques ted, has
been given to the Town. Current certification of such insurance shall be kept on file at all
times during the term of this agreement with the Town Clerk.
3.3 Workers’ACompensation . In addition to these policies, Service Provider shall have and
maintain Workers' Compensation insurance as required by California law and shall provide
evidence of such policy to the Town before beginning services under this Agreement.
Further, Service Provider shall ensure that all subService Providers employed by Se rvice
Provider provide the required Workers' Compensation insurance for their respective
employees.
3.4 Indemnification . The Service Provider shall save, keep, hold harmless and indemnify and
defend the Town its officers, agent, employees and volunteers from all damages, liabilities,
penalties, costs, or expenses in law or equity that may at any time arise or be set up
because of damages to property or personal injury received by reason of, or in the course
of performing work which may be occasioned by a willful or negligent act or omissions of
the Service Provider, or any of the Service Provider's officers, employees, or agents or any
subService Provider.
IV. GENERAL TERMS
4.1 Waiver . No failure on the part of either party to exercise any right or rem edy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of
a subsequent breach of the same or any other provision of this Agreement.
4.2 Governing Law . This Agreement, regardless of where executed, shall be governed by and
construed to the laws of the State of California. Venue for any action regarding this
Agreement shall be in the Superior Court of the County of Santa C lara.
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4.3 Termination of Agreement . The Town and the Service Provider shall have the right to
terminate this agreement with or without cause by giving not less than fifteen days (15)
written notice of termination. In the event of termination, the Servi ce Provider shall
deliver to the Town all plans, files, documents, reports, performed to date by the Service
Provider. In the event of such termination, Town shall pay Service Provider an amount
that bears the same ratio to the maximum contract price as t he work delivered to the
Town bears to completed services contemplated under this Agreement, unless such
termination is made for cause, in which event, compensation, if any, shall be adjusted in
light of the particular facts and circumstances involved in s uch termination.
4.4 Amendment . No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Service
Provider.
4.5 Disputes . In any dispute over any aspect of this Agree ment, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
4.6 Prevailing Wages . In accordance with the provisions of Sections 1770 et seq ., of the Labor
Code, the Director of the Industrial Relations of the St ate of California has determined the
general prevailing rate of wages applicable to the work to be done. Service Provider will
be required to pay to all persons employed on the project by the Service Provider sums not
less than the sums set forth in the d ocumentsAentitledA“GeneralAPrevailingAWageA
Determination made by the Director of Industrial Relations pursuant to California Labor
Code,ApartA7,AChapterA1,A rticleA2,ASectionsA1770,A1773,A1773.1.”AATheseAdocumentsAmayAbeA
obtained from the State of Californ ia.
Pursuant to Labor Code section 1725.5, no Service Provider or subService Provider may be
awarded a contract for public works on a public works project unless registered with the
Department of Industrial Relations.
This project is subject to complia nce monitoring and enforcement by the Department of
Industrial Relations and/or the Town of Los Gatos.
The Service Provider is required to post notices on Public Works requirements.
4.7 Notices . Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
BrightView Tree Company
530 Aldo Avenue
San Jose, CA 95054
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or personally delivered to Service Provider to such address or such other address as
Service Provider designates in writing to Town.
4.8 Order of Precedence . In the event of any conflict, contradiction , or ambiguity between the
terms and conditions of this Agreement in respect of the Products or Services and any
attachments to this Agreement, then the terms and conditions of this Agreement shall
prevail over attachments or other writings.
4.9 Entire Agreement . This Agreement, including all Exhibits, constitutes the complete and
exclusive statement of the Agreement between the Town and Service Provider. No terms,
conditions, understandings or agreements purporting to modify or vary this Agreement,
un less hereafter made in writing and signed by the party to be bound, shall be binding on
either party.
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IN WITNESS WHEREOF, the Town and Service Provider have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Matt Morley, Director of Parks and Public
Works
Brightview Tree Company , by:
Title
Approved as to Form:
______________________________________
Robert Schultz, Town Attorney