HomeMy WebLinkAboutAll Weather AgreementCity of San Luis Obispo
Specification No. 50200-2020-LS
AGREEMENT
THIS AGREEMENT is made and entered into in the City of San Luis Obispo on ______________ by
and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and
ALLWEATHER LANDSCAPE MAINTENANCE LLC, hereinafter referred to as Contractor.
W I T N E S S E T H:
WHEREAS, on November 24, 2020, the City requested proposals for Landscape Maintenance Services, per
Project No. 50200-2020-LS
WHEREAS, pursuant to said request, Contractor submitted a proposal that was accepted by City for
Category B, E, F said project;
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter
contained, the parties hereto agree as follows:
1.TERM. The term of this Agreement shall be from February 1, 2021 to February 28,
2 025, or termination of the contract in accordance with this agreement.
2.INCORPORATION BY REFERENCE. City Specification No. 50200-2020-LS and Contractor's proposal
is hereby incorporated in and made a part of this Agreement and attached as Exhibit A.
3.Contract Extension. The term of the contract may be extended by mutual consent for an additional 2
years.
4.Cost Adjustments. During the term of the agreement, beginning July 1, 2022, contract prices shall be
modified by a percentage equal to the percentage increase in the U.S. Consumer Price Index/All Urban
Consumers (CPI-U) from March in the previous year to March in the year of adjustment. Under no
circumstances shall the contract price increase more than five (5) percent from the prior contract year.
5.Ability to Perform. The Contractor warrants that it possesses all capital and other equipment, labor,
materials, and licenses necessary to carry out and complete the work hereunder in compliance with any
and all applicable federal, state, county, city, and special district laws, ordinances, and regulations.
The Contractor's employees shall be competent and qualified to perform the specified work and shall
perform the specified work in an orderly manner. If the City's representative advises the Contractor that
an employee is incompetent, unqualified, or disorderly, the Contractor shall remove that employee from
the specified work for the duration of the contract. The Contractor shall not bring to the specified work
locations any pets, children, or persons not employed under the contract.
6.Contractor Identification. All staff employed in the work shall wear a shirt or jacket clearly identifying
the Contractor’s company.
City of San Luis Obispo
Specification No. 50200-2020-LS
7. Sub-contract Provisions. No portion of the work pertinent to this contract shall be subcontracted
without written authorization by the City.
8. Contract Assignment. The Contractor shall not assign, transfer, convey or otherwise dispose of the
contract, or its right, title or interest, or its power to execute such a contract to any individual or business
entity of any kind without the previous written consent of the City.
9. Scope of Work and Levels of Service. The Contractor shall furnish services for Landscape
Maintenance as specified in Exhibit A.
The City may periodically request additional unspecified work, such as new or replacement planting at
the assigned locations. For this work, the City shall pay the Contractor an amount equal to the amount
provided by the contractor and attached as Exhibit B, multiplied by the number of units completed or
installed, or the employee hours used multiplied by the accepted labor rate plus the actual cost of
materials with a 15% markup allowed.
10. Work Hours. The Contractor shall perform the specified work on weekdays (Monday through Friday)
between the hours of 7:00 a.m. and 5:00 p.m. The Contractor shall not perform any of the specified
work outside of these work hours without the previous written consent from the City’s Contract Manager.
11. Traffic Control. The Contractor shall furnish all traffic control delineation required in order to perform
the specified work. Traffic control delineation shall comply with all local, state, and federal regulations.
The Contractor shall not close street lanes without the City's previous written consent.
12. Encroachment Permits. When specified work must be completed in the medians of state highways,
such as those on Santa Rosa Street, the Contractor shall obtain and pay for any encroachment permits
which may be required from the State of California Department of Transportation.
13. Work Schedule. At the beginning of each month the Contractor shall submit to the City a proposed
schedule showing the sites and tasks to be completed during the upcoming month. Irrigation testing
locations and fertilization must also be noted on the schedule.
When submitting an invoice for work completed during a month, the Contractor shall include with the
invoice a copy of the schedule showing the actual dates when work was completed. Failure to provide
an adequate schedule will result in a forfeiture of 10% of the total monthly payment due.
14. Utilities Costs. The City shall pay the utilities costs for all water and electricity used at the specified
work locations. Contractor shall follow direction of City staff for “rain shut off” of irrigation controllers
during periods of extended rain. Failure to follow direction may result in contractor being liable for cost
of water.
15. Materials. The Contractor shall not use any material for the specified work without the City's prior written
approval of that material. If requested, the Contractor shall furnish to the City without charge samples
of materials for examination and testing. Irrigation shall meet current City standards.
The Contractor shall furnish to the City a list of all materials used for the specified work that are regulated
by law as toxic or hazardous. With this list the Contractor shall include a material safety data sheet for
each toxic or hazardous material. The Contractor shall train its employees in the proper handling of any
toxic or hazardous materials.
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Specification No. 50200-2020-LS
16. Inspection and Corrections. The Contractor shall furnish the City with every reasonable opportunity
for City to ascertain that the services of the Contractor are being performed in accordance with the
requirements and intentions of this contract. All work done and all materials furnished, if any, shall be
subject to the City's inspection and approval. The inspection of such work shall not relieve Contractor
of any of its obligations to fulfill its contract requirements. The City Contract Manager shall be sole judge
of the adequacy of the Contractor’s maintenance and the appearance of the sites.
During the third week of each month the Contractor and the City's Contract Manager together shall
inspect locations where work was scheduled for completion that month. The City's Contract Manager
shall document any deficiencies in writing. The City's Contract Manager will also periodically inspect
work locations without the Contractor, but will report any deficiencies to the Contractor before the end
of the third week of the month.
If the Contractor does not correct a documented deficiency by the end of the month, it shall forfeit 50
percent of the monthly unit price for the location where the deficiency occurred. If the deficiency is not
corrected within the next month, 100 percent of the monthly unit price for the location where the
deficiency occurred will be forfeited. The City will deduct such forfeiture from its next payment. If site
maintenance has not been completed at all, 100 percent of the monthly unit price will be forfeited from
the next payment.
17. Termination. If, during the term of the contract, the City determines that the Contractor is not faithfully
abiding by any term or condition contained herein, the City may notify the Contractor in writing of such
defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice of time
thereafter in which to perform said work or cure the deficiency.
If the Contractor has not performed the work or cured the deficiency within the ten days specified in the
notice, such shall constitute a breach of the contract and the City may terminate the contract immediately
by written notice to the Contractor to said effect. Thereafter, neither party shall have any further duties,
obligations, responsibilities, or rights under the contract except, however, any and all obligations of the
Contractor's surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any
manner waived by the termination thereof.
In said event, the Contractor shall be entitled to the reasonable value of its services performed from the
beginning date in which the breach occurs up to the day it received the City's Notice of Termination,
minus any offset from such payment representing the City's damages from such breach. "Reasonable
value" includes fees or charges for goods or services as of the last milestone or task satisfactorily
delivered or completed by the Contractor as may be set forth in the Agreement payment schedule;
compensation for any other work, services or goods performed or provided by the Contractor shall be
based solely on the City's assessment of the value of the work-in-progress in completing the overall
scope of work.
The City reserves the right to delay any such payment until completion or confirmed abandonment of
the project, as may be determined in the City's sole discretion, so as to permit a full and complete
accounting of costs. In no event, however, shall the Contractor be entitled to receive in excess of the
compensation quoted in its proposal.
If, at any time during the term of the contract, the City determines that continued contract maintenance
is no longer in the best interests of the City due to funding shortages or unforeseen circumstances, the
City reserves the right to terminate the contract. Contractor will be paid compensation due and payable
to the date of termination.
18. Reports. At the end of each month, included with the invoice, the Contractor shall provide all irrigation
reports, fertilization and pesticide application information for the prior month. Failure to provide any of
these reports will result in forfeiture of 20% of the total monthly payment due. During months when no
City of San Luis Obispo
Specification No. 50200-2020-LS
irrigation, fertilization of pesticide application occurs, the Contractor shall note that with the invoice
submittal.
19. Record Retention and Audit. For the purpose of determining compliance with various laws and
regulations as well as performance of the contract, the Contractor and sub-contractors shall maintain all
books, documents, papers, accounting records and other evidence pertaining to the performance of the
contract, including but not limited to the cost of administering the contract. Materials shall be made
available at their respective offices at all reasonable times during the contract period and for three years
from the date of final payment under the contract. Authorized representatives of the City shall have the
option of inspecting and/or auditing all records. Copies shall be furnished if requested.
20. Release of Reports and Information. The Contractor shall not issue any news release or public
relations item of any nature, whatsoever, regarding work performed or to be performed under this
contract without prior review of the contents thereof by the City and receipt of the City’s written
permission.
21. Copies of Reports and Information. If the City requests additional copies of reports, drawings,
specifications, or any other material in addition to what the Contractor is required to furnish in limited
quantities as part of the work or services under these specifications, the Contractor shall provide such
additional copies as are requested, and City shall compensate the Contractor for the costs of duplicating
of such copies at the Contractor's direct expense.
22. Conflict of Interest. The Contractor shall disclose any financial, business, or other relationship with the
City that may have an impact upon the outcome of this contract, or any ensuing City construction project.
The Contractor shall also list current clients who may have a financial interest in the outcome of this
contract, or any ensuing City construction project which will follow.
The Contractor covenants that it presently has no interest, and shall not acquire any interest—direct,
indirect or otherwise—that would conflict in any manner or degree with the performance of the work
hereunder. The Contractor further covenants that, in the performance of this work, no sub-Contractor
or person having such an interest shall be employed. The Contractor certifies that no one who has or
will have any financial interest in performing this work is an officer or employee of the City. It is hereby
expressly agreed that, in the performance of the work hereunder, the Contractor shall at all times be
deemed an independent Contractor and not an agent or employee of the City.
23. Rebates, Kickbacks or Other Unlawful Consideration. The Contractor warrants that this contract
was not obtained or secured through rebates, kickbacks or other unlawful consideration, either promised
or paid to any City employee. For breach or violation of the warranty, the City shall have the right in its
discretion; to terminate the contract without liability; to pay only for the value of the work actually
performed; to deduct from the contract price; or otherwise recover the full amount of such rebate,
kickback or other unlawful consideration.
24. Covenant Against Contingent Fees. The Contractor warrants by execution of this contract that no
person or selling agency has been employed, or retained, to solicit or secure this contract upon an
agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting
bona fide employees or bona fide established commercial or selling agencies maintained by the
Contractor for the purpose of securing business. For breach or violation of this warranty, the City has
the right to annul this contract without liability; pay only for the value of the work actually performed, or
in its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount
of such commission, percentage, brokerage, or contingent fee.
City of San Luis Obispo
Specification No. 50200-2020-LS
25. Compliance with Laws and Wage Rates. The Contractor shall keep itself fully informed of and shall
observe and comply with all applicable state and federal laws and county and City of San Luis Obispo
ordinances, regulations and adopted codes during its performance of the work.
Prevailing wage is required, at a minimum, for work under this contract. The Contractor and any
subcontractor must forfeit to the City not more than $200 per day or part of a day for each worker paid
less than the prevailing wage rate and pay the worker the difference between the prevailing wage rate
and the rate paid (Labor Code § 1775). The Labor Commissioner determines the amount of this penalty
and bases the amount on:
1. Whether the failure to pay the correct prevailing wage rate was a good-faith mistake that the Contractor
or subcontractor promptly and voluntarily corrected upon notice
2. The prior record of the Contractor or subcontractor in meeting its prevailing wage obligations
3.The Contractor or subcontractor's willful failure to pay the correct rate of prevailing wages
The Contractor shall submit certified payroll as part of the monthly invoice submittal. Weekly payrolls
must include each employee’s:
1.Full name
2.Address
4. Work classification
5. Straight time and overtime hours worked each day and week
6. Actual wages paid for each day
7. Fringe benefits or submit a statement of fringe benefits, clearly defining which benefits are paid directly
to the employee as part of the hourly rate, and which benefits are paid into an approved program. Fringe
benefit statements must be signed by the employer or the employer’s agent certifying the fringe benefit
statement is correct and the employer has been authorized to make any payments on behalf of the
employee to approved programs.
26. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Contractor
is required to pay.
27. Permits, Licenses, and Insurance. The Contractor shall procure and maintain current, all permits,
licenses, and specified insurance, and pay all charges and fees, and file all notices as they pertain to
the completion of the Contractor’s work. The contractor shall have and maintain the following valid State
of California Licenses, C-27 Contractors License, Qualified Pesticide Applicators License, and
Agricultural Pest Control Business License. The Contractor shall comply with the current State
Department of Pesticide Regulations and County of San Luis Obispo Agriculture Commissioner
regulations.
NOTE: For CAT (F) only Contractor will need to be eRailsafe certified by the Union Pacific Rail Road
Contact Bill Chandler of UPRR Safety Department – Police Background Investigation Phone # (435-
563-8253) or email mfarley@up.com MaryBeth Farley Operations Manager Support UPRR for forms
and procedure. Or on the website: https://erailsafe.com/usa/applicant-login/
28. (a) Non-design, non-construction Professional Services: To the fullest extent permitted by law
(including, but not limited to California Civil Code Sections 2782 and 2782.8), Contractor shall indemnify,
defend, and hold harmless the City, and its elected officials, officers, employees, volunteers, and agents
(“City Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations,
judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”),
arising out of the Contractor’s performance or Contractor’s failure to perform its obligations under this
Agreement or out of the operations otherwise conducted by Contractor, including claims arising out of
the City’s active or passive negligence, except for such loss or damage arising from the sole negligence
or willful misconduct of the City. In the event the City Indemnitees are made a party to any action, lawsuit,
or other adversarial proceeding arising from Contractor’s performance of this Agreement, the Contractor
shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City Indemnitees
their costs of defense, including reasonable legal fees, incurred in defense of such claims.
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Specification No. 50200-2020-LS
29. (d) The review, acceptance or approval of the Contractor’s work or work product by any indemnified
party shall not affect, relieve or reduce the Contractor’s indemnification or defense obligations. This
Section survives completion of the services or the termination of this contract. The provisions of this
Section are not limited by and do not affect the provisions of this contract relating to insurance.
The review, acceptance or approval of the Consultant’s work or work product by any indemnified party
shall not affect, relieve or reduce the Consultant’s indemnification or defense obligations. This Section
survives completion of the services or the termination of this contract. The provisions of this Section are
not limited by and do not affect the provisions of this contract relating to insurance.
30. Safety Provisions. The Contractor shall conform to the rules and regulations pertaining to safety
established by OSHA; the California Division of Industrial Safety; and Union Pacific Railroad (UPRR) as
well as the UPRR Fire Prevent Plan.
31. Public and Employee Safety. Whenever the Contractor's operations create a condition hazardous to
the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and
maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other
protective measures as are necessary to prevent accidents or damage or injury to the public and
employees.
32. Preservation of City Property. The Contractor shall provide and install suitable safeguards, approved
by the City, to protect City property from injury or damage. If City property is injured or damaged resulting
from the Contractor's operations, it shall be replaced or restored at the Contractor's expense. The
facilities shall be replaced or restored to a condition as good as when the Contractor began work.
33. Water Conservation. Contractors shall turn off all irrigation systems during periods of rainfall and/or
times when suspension of irrigation is desirable to conserve water while remaining within the guidelines
of good, and acceptable horticultural maintenance practices. Contractors shall comply with all City of
San Luis Obispo Ordinances and Resolutions which relate to water conservation.
34. Recycled/Reclaimed Water. Water supplied by the City for irrigation may be Recycled/Reclaimed
Water, indicated by purple color-coded sprinklers, valves, valve boxes, tags and signs. Contractor
understands that Recycled/reclaimed Water is not intended for human contact or consumption.
Contractor accepts full responsibility for educating and monitoring its employees regarding safety issues
related to the presence and use of Recycled/Reclaimed Water.
35. Security of Work Locations. For work locations secured by locks, the City shall provide the Contractor
with the required keys. The Contractor shall properly secure these locations when specified work is
completed and shall replace or repair City property lost or damaged when locks are not properly set.
36. Contractor Non-Discrimination. In the performance of this work, the Contractor agrees that it will not
engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment
of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of
such persons.
37. Non-Exclusive Contract. The City reserves the right to contract for the services listed in this proposal
from other Contractors during the contract term.
38. Contractor Invoices. The Contractor shall deliver a monthly invoice to the City, itemized by project
work phase or, in the case of on-call contracts, by project title. Invoice must include a breakdown of
City of San Luis Obispo
Specification No. 50200-2020-LS
hours billed and miscellaneous charges and any sub-Contractor invoices, similarly broken down, as
supporting detail.
39. Payment. For providing services as specified in this Agreement, City will pay and Contractor shall
receive therefore compensation for individual site work in accordance with the prices included in
Sections J and K.
40. Contractor Invoices. The Contractor shall deliver a monthly invoice to the City with the name of the
contract, the contract specification number. The invoice shall be itemized by site / location and
accompanied by required reporting documents.
41. Resolution of Disputes. Any dispute, other than audit, concerning a question of fact arising under this
contract that is not disposed of by agreement shall be decided by a committee consisting of the City
Contract Manager and the City Director of Public Works, who may consider written or verbal information
submitted by the Contractor. Not later than thirty days after receipt of a written decision on any dispute
by the City’s Contract Manager, the Contractor may request review by the City Council of unresolved
claims or disputes, other than audit, in accordance with Chapter 1.20 Appeals Procedure of the Municipal
Code.
Any dispute concerning a question of fact arising under an audit of this contract that is not disposed of by
agreement, shall be reviewed by the City’s Public Works Director. Not later than 30 days after issuance
of the final audit report, the Contractor may request a review by the City’s Public Works Director of
unresolved audit issues. The request for review must be submitted in writing.
Neither the pendency of a dispute, nor its consideration by the City will excuse the Contractor from full and
timely performance in accordance with the terms of this contract.
42. CITY'S OBLIGATIONS. For providing the services as specified in this Agreement, City will pay, and
Contractor shall receive therefore compensation as awarded by contract.
43. CONTRACTOR/CONSULTANT’S OBLIGATIONS. For and in consideration of the payments and
agreements hereinbefore mentioned to be made and performed by City, Contractor agrees with City to
do everything required by this Agreement and the said specifications.
44. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be
in writing and shall be effective only upon approval by the City Engineer. If, at any time during the
project, the Contractor is directed to do work by persons other than the City Contract Manager and the
Contractor believes that the work is outside of the scope of the original contract, the Contractor shall
inform the Contract Manager immediately. If the Contract Manager and Contractor both agree that the
work is outside of the work scope and is necessary to the successful completion of the work, then a fee
will be established for such work based on Contractor's hourly billing rates or a lump sum price agreed
upon between the City and the Contractor. Any extra work performed by Contractor without prior written
approval from the City Contract Manager shall be at Contractor's own expense.
45. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated
herein by reference, shall constitute the complete agreement between the parties hereto. No oral
agreement, understanding or representation not reduced to writing and specifically incorporated herein
shall be of any force or effect, nor shall any such oral agreement, understanding or representation be
binding upon the parties hereto.
City of San Luis Obispo
Specification No. 50200-2020-LS
46. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid
by registered or certified mail addressed as follows:
City Adam Basden
City of San Luis Obispo
25 Prado Rd
San Luis Obispo, CA 93401
Contractor All Weather Landscape Maintenance, LLC
PO BOX 6734
Santa Maria, CA 93456
47. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that everyone
executing this agreement on behalf of each party is a person duly authorized and empowered to execute
Agreements for such party.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year
first above written.
CITY OF SAN LUIS OBISPO:
By:
City Manager
APPROVED AS TO FORM: CONTRACTOR:
By:
City Attorney Name of CAO / President