HomeMy WebLinkAboutReso 56-2022 (22-274)The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
1
MINOR CONSTRUCTION AGREEMENT
This Agreement (this “Agreement”) is made and entered into between the City of South San
Francisco, a municipal corporation (“City”) and The Davey Tree Expert Company, (“Contractor”)
effective as of April 27, 2022 (the “Effective Date”). City and Contractor are hereinafter collectively
referred to as (the “Parties”). In consideration of their mutual covenants, the Parties hereby agree as
follows:
1. Scope of Work. Contractor shall provide the following services and/or materials (“the
Work”): Tree Removal, as more particularly described in the Scope of Work, attached hereto and
incorporated herein as Exhibit A. In the event of a conflict or inconsistency between the text of the main
body of this Agreement and Exhibit A, the text of the main body of this Agreement shall prevail. The Work
shall commence on May 1, 2022, and shall be completed to the satisfaction of the City by December 31,
2024, unless such date is extended or otherwise modified by the City in writing.
2. Payment. City shall pay Contractor an amount not to exceed: Four Hundred Ninety-Five
Thousand Dollars ($495,000) for the full and satisfactory completion of the Work in accordance with the
terms and based on an attached rate schedule. The amount stated above is the entire compensation payable
to Contractor for the Work performed hereunder, including all labor, materials, tools and equipment
furnished by Contractor.
(A) Invoices. City shall make monthly payments, based on invoices received, for Work
satisfactorily performed. City shall have thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Contractor.
(B) False Claims Act. Presenting a false or fraudulent claim for payment, including a change
order, is a violation of the California False Claims Act and may result in treble damages and a fine
of five thousand ($5,000) to ten thousand dollars ($10,000) per violation.
(C) Retention and Final Payment. City shall retain five percent (5%) of each payment, which
shall be paid within sixty (60) days after acceptance of the services, as described in Section 11, and
submittal to City of a final invoice if all services required have been satisfactorily performed.
Contractor may substitute securities or establish an escrow in lieu of retainage, pursuant to Public
Contract Code Section 22300.
3. Independent Contractor. It is understood and agreed that this Agreement is not a contract
of employment and does not create an employer-employee relationship between the City and Contractor.
At all times Contractor shall be an independent contractor and Contractor is not authorized to bind the City
to any contracts or other obligations without the express written consent of the City.
4. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend
(with counsel acceptable to the City), and hold harmless the City and its elected and appointed officers,
officials, employees, agents, contractors and consultants (collectively, the “City Indemnitees”) from and
against any and all liability, loss, damage, claims, expenses and costs (including, without limitation,
attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature arising out of or in
connection with Contractor’s performance of the Work or Contractor’s failure to comply with this
Agreement, except such Liability caused by the gross negligence or willful misconduct of the City
Indemnitees.
5. Excavations. In accordance with Public Contracts Code Section 714, Contractor shall
promptly notify City in writing of discovery of any material Contractor believes may be hazardous waste
as defined in Section 25117 of the Health and Safety Code or of any subsurface or latent physical conditions
at the site of any unusual nature differing materially from those generally inherent in the work described in
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
2
Exhibit A. Upon receipt of such communication, City shall promptly investigate the conditions and if
conditions do materially differ, shall issue a change order providing for additional time or payment of
additional costs.
6. Relocation of Utilities. In the event that the completion of the services described in Exhibit
A requires the removal or protection of main or trunk line public utility facilities, the City shall be
responsible for removal and protection of such public utilities pursuant to Government Code Section 4215.
7. Insurance. Prior to beginning the Work and continuing throughout the term of this
Agreement, Contractor (and any subcontractors) shall, at Contractor’s (or subcontractor’s) sole cost and
expense, furnish the City with certificates of insurance evidencing that Contractor has obtained and
maintains insurance in the following amounts:
A. Workers’ Compensation that satisfies the minimum statutory limits.
B. Commercial General Liability and Property Damage Insurance in an amount not less than ONE
MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION
DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, products,
completed operations and contractual liability coverage. The policy shall also include coverage for
liability arising out of the use and operation of any City-owned or City-furnished equipment used or
operated by the Contractor, its personnel, agents or subcontractors.
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and
non-owned vehicles.
All insurance policies shall be written on an occurrence basis and shall name the City Indemnitees
as additional insureds. The certificates shall contain a statement of obligation on the part of the carrier to
notify City of any material change, cancellation, termination, or non-renewal of the coverage at least thirty
(30) days in advance of the effective date of any such material change, cancellation, termination or non-
renewal. Further, if the Vendor’s insurance policy includes a self-insured retention that must be paid by a
named insured as a precondition of the insurer’s liability, or which has the effect of providing that payments
of the self-insured retention by others, including additional insureds or insurers do not serve to satisfy the
self-insured retention, such provisions must be modified by special endorsement so as to not apply to the
additional insured coverage required by this agreement so as to not prevent any of the parties to this
agreement from satisfying or paying the self-insured retention required to be paid as a precondition to the
insurer’s liability. Additionally, the certificates of insurance must note whether the policy does or does not
include any self-insured retention and also must disclose the deductible. The City’s Risk Manager may
waive or modify any of the insurance requirements of this section by means of a written document.
8. General Warranties and Guarantee. Contractor warrants that: (A) All Work, Products
and/or Services are as described in this Agreement, including any exhibits incorporated] conform to all
drawings, samples, descriptions and specifications; (B) All Work, Products and/or Services delivered are
new and of good merchantable quality, free from material defects of workmanship and fit for the purpose
for which sold or provided; (C) Contractor has good title to all Products delivered and all Products delivered
are free from liens and other encumbrances; and (D) Contractor's Work will be in strict conformity with all
applicable local, state, and federal laws. For purposes of this warranty, any parts not meeting the foregoing
quality shall be deemed defective.
Contractor shall guarantee the Work to be free of defects in material and workmanship for a period
of one (1) year following the City’s acceptance of the Work (“Contractor’s Guarantee”), as described in
Section 11. As part of Contractor’s Guarantee, Contractor agrees to make, at Contractor’s own expense,
any repairs or replacements made necessary by defects in material or workmanship which become evident
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
3
within the one-year guarantee period. The Contractor’s Guarantee is effective regardless of whether or not
a maintenance bond is required by the City for this Agreement.
9. Licenses. Contractor represents and warrants that Contractor possesses all licenses,
permits, and qualifications legally required for the performance of the Work. Contractor shall, at
Contractor’s sole cost and expense, maintain all such licenses, permits and qualifications in full force and
effect throughout the term of this Agreement.
10. Damage to City Facilities and Site Safety. Damage to City or public facilities or private
property caused by the Contractor or by its subcontractors during performance of the Work shall be repaired
and/or replaced in kind at no cost to the City. The worksite shall be kept clean and free of hazards at all
times during installation. After work is completed at the site, Contractor shall clean the surrounding area
to the condition prior to performance of the Work.
11. Final Inspection and Work Acceptance. All Work shall be subject to final inspection and
acceptance or rejection by the City.
12. Compliance with all Applicable Laws. Contractor shall comply with all applicable local,
state and federal laws, regulations and ordinances in the performance of this Agreement. Contractor shall
not discriminate in the provision of service or in the employment of persons engaged in the performance of
this Agreement on account of race, color, national origin, ancestry, religion, gender, marital status, sexual
orientation, age, physical or mental disability in violation of any applicable local, state or federal laws or
regulations.
13. Payment of Taxes; Tax Withholding. Contractor is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt from
tax withholding, Contractor must provide City with a valid California Franchise Tax Board form 590
(“Form 590. Unless Contractor provides City with a valid Form 590 or other valid, written evidence of an
exemption or waiver from withholding, City may withhold California taxes from payments to Contractor
as required by law. Contractor shall obtain, and maintain on file for three (3) years after the termination of
this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all subcontractors.
Contractor accepts sole responsibility for withholding taxes from any non-California resident subcontractor
and shall submit written documentation of compliance with Contractor’s withholding duty to City upon
request.
14. Prevailing Wage. The wages to be paid for a day's work to all classes of laborers, workmen,
or mechanics on the work contemplated by this Agreement, shall be not less than the prevailing rate for a
day’s work in the same trade or occupation in the locality within the state where the work hereby
contemplates to be performed as determined by the Director of Industrial Relations pursuant to the
Director’s authority under Labor Code Section 1770, et seq. Each laborer, worker or mechanic employed
by Contractor or by any subcontractor shall receive the wages herein provided for. The Contractor shall
pay two hundred dollars ($200), or whatever amount may be set by Labor Code Section 1775, as may be
amended, per day penalty for each worker paid less than prevailing rate of per diem wages. The difference
between the prevailing rate of per diem wages and the wage paid to each worker shall be paid by the
Contractor to each worker.
The City will not recognize any claim for additional compensation because of the payment by the Contractor
for any wage rate in excess of prevailing wage rate set forth. The possibility of wage increases is one of the
elements to be considered by the Contractor.
NOTE: An error on the part of an awarding body does not relieve the Contractor from responsibility
for payment of the prevailing rate of per diem wages and penalties pursuant to Labor Code Sections
1770-1775.
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
4
(A) Posting of Schedule of Prevailing Wage Rates and Deductions. If the schedule of prevailing
wage rates is not attached hereto pursuant to Labor Code Section 1773.2, the Contractor
shall post at appropriate conspicuous points at the site of the project a schedule showing all
determined prevailing wage rates for the various classes of laborers and mechanics to be
engaged in work on the project under this contract and all deductions, if any, required by
law to be made from unpaid wages actually earned by the laborers and mechanics so
engaged.
(B) Payroll Records. Each Contractor and subcontractor shall keep an accurate payroll record,
showing the name, address, social security number, work week, and the actual per diem
wages paid to each journeyman, apprentice, worker, or other employee employed by the
Contractor in connection with the public work. Such records shall be certified and submitted
weekly as required by Labor Code Section 1776.
15. Patents. The Contractor shall assume all costs arising from the use of patented materials,
equipment, services, or processes used on or incorporated in the Work, and agrees to indemnify and save
harmless the City of South San Francisco, the City Council, and the Engineer, and their duly authorized
representatives, for all suits at law, or actions of every nature for, or on account of the use of any patented
materials, equipment, services, or processes.
16. Dispute Resolution. Prior to initiating litigation in a court of competent jurisdiction, both
Contractor and City shall undergo alternative dispute procedures as outlined in Public Contract Code Section
20104, et seq. The Parties also expressly agree that such procedures are incorporated as though fully set
forth in this Agreement.
17. Prevailing Party. In the event that either party to this Agreement commences any legal
action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the
prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated
with that legal action or proceeding.
18. Termination. City may terminate or suspend this Agreement at any time and without cause
upon written notification to Contractor. Upon receipt of notice of termination or suspension, Contractor
shall immediately stop all work in progress under this Agreement. The City's right of termination shall be
in addition to all other remedies available under law to the City.
19. 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.
20. Entire Agreement. This Agreement represents the entire and integrated agreement between
the Parties. This Agreement may be modified or amended only by a subsequent written agreement signed
by both Parties.
21. Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent
of City shall be personally liable to Contractor in the event of any default or breach by City or for any
amount which may become due to Contractor pursuant to this Agreement.
22. Execution in Counterparts. This Agreement may be executed in counterparts and/or by
facsimile or other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with other signed
counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
5
23. Notice. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if
personally delivered; (ii) when received if transmitted by telecopy, if received during normal business hours
on a business day (or if not, the next business day after delivery) provided that such facsimile is legible and
that at the time such facsimile is sent the sending Party receives written confirmation of receipt; (iii) if sent
for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express);
and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice
shall be sent to the respective Parties as follows:
Contractor:
The Davey Tree Expert Company
1400 Mission Road
South San Francisco, CA 94080
City:
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written above.
CITY: THE DAVEY TREE EXPERT COMPANY:
By:__________________________ By:__________________________
Mike Futrell, City Manager Adam Jensen, District Manager
APPROVED AS TO FORM:
____________________________
City Attorney
2729960.1
ATTESTED:
____________________________
City Clerk
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
1
MINOR CONSTRUCTION AGREEMENT
This Agreement (this “Agreement”) is made and entered into between the City of South San
Francisco, a municipal corporation (“City”) and The Davey Tree Expert Company, (“Contractor”)
effective as of April 27, 2022 (the “Effective Date”). City and Contractor are hereinafter collectively
referred to as (the “Parties”). In consideration of their mutual covenants, the Parties hereby agree as
follows:
1.Scope of Work. Contractor shall provide the following services and/or materials (“the
Work”): Tree Removal, as more particularly described in the Scope of Work, attached hereto and
incorporated herein as Exhibit A. In the event of a conflict or inconsistency between the text of the main
body of this Agreement and Exhibit A, the text of the main body of this Agreement shall prevail. The Work
shall commence on May 1, 2022, and shall be completed to the satisfaction of the City by December 31,
2024, unless such date is extended or otherwise modified by the City in writing.
2.Payment. City shall pay Contractor an amount not to exceed: Four Hundred Ninety-Five
Thousand Dollars ($495,000) for the full and satisfactory completion of the Work in accordance with the
terms and based on an attached rate schedule. The amount stated above is the entire compensation payable
to Contractor for the Work performed hereunder, including all labor, materials, tools, and equipment
furnished by Contractor.
(A)Invoices. City shall make monthly payments, based on invoices received, for Work
satisfactorily performed. City shall have thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Contractor.
(B)False Claims Act. Presenting a false or fraudulent claim for payment, including a change
order, is a violation of the California False Claims Act and may result in treble damages and a fine
of five thousand ($5,000) to ten thousand dollars ($10,000) per violation.
(C)Retention and Final Payment. City shall retain five percent (5%) of each payment, which
shall be paid within sixty (60) days after acceptance of the services, as described in Section 11, and
submittal to City of a final invoice if all services required have been satisfactorily performed.
Contractor may substitute securities or establish an escrow in lieu of retainage, pursuant to Public
Contract Code Section 22300.
3. Independent Contractor. It is understood and agreed that this Agreement is not a contract
of employment and does not create an employer-employee relationship between the City and Contractor.
At all times Contractor shall be an independent contractor and Contractor is not authorized to bind the City
to any contracts or other obligations without the express written consent of the City.
4.Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend
(with counsel acceptable to the City), and hold harmless the City and its elected and appointed officers,
officials, employees, agents, contractors and consultants (collectively, the “City Indemnitees”) from and
against any and all liability, loss, damage, claims, expenses and costs (including, without limitation,
attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature arising out of or in
connection with Contractor’s performance of the Work or Contractor’s failure to comply with this
Agreement, except such Liability caused by the active negligence or willful misconduct of the City
Indemnitees.
5.Excavations. In accordance with Public Contracts Code Section 714, Contractor shall
promptly notify City in writing of discovery of any material Contractor believes may be hazardous waste
as defined in Section 25117 of the Health and Safety Code or of any subsurface or latent physical conditions
at the site of any unusual nature differing materially from those generally inherent in the work described in
Government Code Section 54957.5
SB 343
Agenda: 4/27/2022 Reg CC
Item #10a
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
2
Exhibit A. Upon receipt of such communication, City shall promptly investigate the conditions and if
conditions do materially differ, shall issue a change order providing for additional time or payment of
additional costs.
6. Relocation of Utilities. In the event that the completion of the services described in Exhibit
A requires the removal or protection of main or trunk line public utility facilities, the City shall be
responsible for removal and protection of such public utilities pursuant to Government Code Section 4215.
7. Insurance. Prior to beginning the Work and continuing throughout the term of this
Agreement, Contractor (and any subcontractors) shall, at Contractor’s (or subcontractor’s) sole cost and
expense, furnish the City with certificates of insurance evidencing that Contractor has obtained and
maintains insurance in the following amounts:
A. Workers’ Compensation that satisfies the minimum statutory limits.
B. Commercial General Liability and Property Damage Insurance in an amount not less than ONE
MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION
DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, products,
completed operations and contractual liability coverage. The policy shall also include coverage for
liability arising out of the use and operation of any City-owned or City-furnished equipment used or
operated by the Contractor, its personnel, agents, or subcontractors.
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and
non-owned vehicles.
All insurance policies shall be written on an occurrence basis and shall name the City Indemnitees
as additional insureds. The certificates shall contain a statement of obligation on the part of the carrier to
notify City of any material change, cancellation, termination, or non-renewal of the coverage at least thirty
(30) days in advance of the effective date of any such material change, cancellation, termination, or non-
renewal. Further, if the Vendor’s insurance policy includes a self-insured retention that must be paid by a
named insured as a precondition of the insurer’s liability, or which has the effect of providing that payments
of the self-insured retention by others, including additional insureds or insurers do not serve to satisfy the
self-insured retention, such provisions must be modified by special endorsement so as to not apply to the
additional insured coverage required by this agreement so as to not prevent any of the parties to this
agreement from satisfying or paying the self-insured retention required to be paid as a precondition to the
insurer’s liability. Additionally, the certificates of insurance must note whether the policy does or does not
include any self-insured retention and also must disclose the deductible. The City’s Risk Manager may
waive or modify any of the insurance requirements of this section by means of a written document.
8. General Warranties and Guarantee. Contractor warrants that: (A) All Work, Products
and/or Services are as described in this Agreement, including any exhibits incorporated, conform to all
drawings, samples, descriptions and specifications; (B) All Work, Products and/or Services delivered are
new and of good merchantable quality, free from material defects of workmanship and fit for the purpose
for which sold or provided; (C) Contractor has good title to all Products delivered and all Products delivered
are free from liens and other encumbrances; and (D) Contractor's Work will be in strict conformity with all
applicable local, state, and federal laws. For purposes of this warranty, any parts not meeting the foregoing
quality shall be deemed defective.
Contractor shall guarantee the Work to be free of defects in material and workmanship for a period
of one (1) year following the City’s acceptance of the Work (“Contractor’s Guarantee”), as described in
Section 11. As part of Contractor’s Guarantee, Contractor agrees to make, at Contractor’s own expense,
any repairs or replacements made necessary by defects in material or workmanship which become evident
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
3
within the one-year guarantee period. The Contractor’s Guarantee is effective regardless of whether or not
a maintenance bond is required by the City for this Agreement.
9. Licenses. Contractor represents and warrants that Contractor possesses all licenses,
permits, and qualifications legally required for the performance of the Work. Contractor shall, at
Contractor’s sole cost and expense, maintain all such licenses, permits and qualifications in full force and
effect throughout the term of this Agreement.
10. Damage to City Facilities and Site Safety. Damage to City or public facilities or private
property caused by the Contractor or by its subcontractors during performance of the Work shall be repaired
and/or replaced in kind at no cost to the City. The worksite shall be kept clean and free of hazards at all
times during installation. After work is completed at the site, Contractor shall clean the surrounding area
to the condition prior to performance of the Work.
11. Final Inspection and Work Acceptance. All Work shall be subject to final inspection and
acceptance or rejection by the City.
12. Compliance with all Applicable Laws. Contractor shall comply with all applicable local,
state and federal laws, regulations and ordinances in the performance of this Agreement. Contractor shall
not discriminate in the provision of service or in the employment of persons engaged in the performance of
this Agreement on account of race, color, national origin, ancestry, religion, gender, marital status, sexual
orientation, age, physical or mental disability in violation of any applicable local, state, or federal laws or
regulations.
13. Payment of Taxes; Tax Withholding. Contractor is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt from
tax withholding, Contractor must provide City with a valid California Franchise Tax Board form 590
(“Form 590. Unless Contractor provides City with a valid Form 590 or other valid, written evidence of an
exemption or waiver from withholding, City may withhold California taxes from payments to Contractor
as required by law. Contractor shall obtain, and maintain on file for three (3) years after the termination of
this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all subcontractors.
Contractor accepts sole responsibility for withholding taxes from any non-California resident subcontractor
and shall submit written documentation of compliance with Contractor’s withholding duty to City upon
request.
14. Prevailing Wage. The wages to be paid for a day's work to all classes of laborers, workmen,
or mechanics on the work contemplated by this Agreement, shall be not less than the prevailing rate for a
day’s work in the same trade or occupation in the locality within the state where the work hereby
contemplates to be performed as determined by the Director of Industrial Relations pursuant to the
Director’s authority under Labor Code Section 1770, et seq. Each laborer, worker or mechanic employed
by Contractor or by any subcontractor shall receive the wages herein provided for. The Contractor shall
pay two hundred dollars ($200), or whatever amount may be set by Labor Code Section 1775, as may be
amended, per day penalty for each worker paid less than prevailing rate of per diem wages. The difference
between the prevailing rate of per diem wages and the wage paid to each worker shall be paid by the
Contractor to each worker.
The City will not recognize any claim for additional compensation because of the payment by the Contractor
for any wage rate in excess of prevailing wage rate set forth. The possibility of wage increases is one of the
elements to be considered by the Contractor.
NOTE: An error on the part of an awarding body does not relieve the Contractor from responsibility
for payment of the prevailing rate of per diem wages and penalties pursuant to Labor Code Sections
1770-1775.
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
4
(A) Posting of Schedule of Prevailing Wage Rates and Deductions. If the schedule of prevailing
wage rates is not attached hereto pursuant to Labor Code Section 1773.2, the Contractor
shall post at appropriate conspicuous points at the site of the project a schedule showing all
determined prevailing wage rates for the various classes of laborers and mechanics to be
engaged in work on the project under this contract and all deductions, if any, required by
law to be made from unpaid wages actually earned by the laborers and mechanics so
engaged.
(B) Payroll Records. Each Contractor and subcontractor shall keep an accurate payroll record,
showing the name, address, social security number, work week, and the actual per diem
wages paid to each journeyman, apprentice, worker, or other employee employed by the
Contractor in connection with the public work. Such records shall be certified and submitted
weekly as required by Labor Code Section 1776.
15. Patents. The Contractor shall assume all costs arising from the use of patented materials,
equipment, services, or processes used on or incorporated in the Work, and agrees to indemnify and save
harmless the City of South San Francisco, the City Council, and the Engineer, and their duly authorized
representatives, for all suits at law, or actions of every nature for, or on account of the use of any patented
materials, equipment, services, or processes.
16. Dispute Resolution. Prior to initiating litigation in a court of competent jurisdiction, both
Contractor and City shall undergo alternative dispute procedures as outlined in Public Contract Code Section
20104, et seq. The Parties also expressly agree that such procedures are incorporated as though fully set
forth in this Agreement.
17. Prevailing Party. In the event that either party to this Agreement commences any legal
action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the
prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated
with that legal action or proceeding.
18. Termination. City may terminate or suspend this Agreement at any time and without cause
upon at least five (5) days’ written notification to Contractor. Upon receipt of notice of termination or
suspension, Contractor shall immediately stop all work in progress under this Agreement. The City's right
of termination shall be in addition to all other remedies available under law to the City.
19. 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.
20. Entire Agreement. This Agreement represents the entire and integrated agreement between
the Parties. This Agreement may be modified or amended only by a subsequent written agreement signed
by both Parties.
21. Non-Liability of Officials, Employees and Agents. No officer, official, employee or agent
of City shall be personally liable to Contractor in the event of any default or breach by City or for any
amount which may become due to Contractor pursuant to this Agreement.
22. Execution in Counterparts. This Agreement may be executed in counterparts and/or by
facsimile or other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with other signed
counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
The City of South San Francisco
Minor Construction Agreement
[Rev:11/14/2016]
5
23. Notice. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if
personally delivered; (ii) when received if transmitted by telecopy, if received during normal business hours
on a business day (or if not, the next business day after delivery) provided that such facsimile is legible and
that at the time such facsimile is sent the sending Party receives written confirmation of receipt; (iii) if sent
for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express);
and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice
shall be sent to the respective Parties as follows:
Contractor:
The Davey Tree Expert Company
1400 Mission Road
South San Francisco, CA 94080
With a copy to:
The Davey Tree Expert Company
Attn: Legal Department
1500 N. Mantua Street
Kent, OH 44240
City:
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written above.
CITY: THE DAVEY TREE EXPERT COMPANY:
By:__________________________ By:__________________________
Mike Futrell, City Manager Adam Jensen, District Manager
ATTESTED:
____________________________
City Clerk
APPROVED AS TO FORM:
____________________________
City Attorney
2729960.1
5098900.2