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HomeMy WebLinkAboutItem 06.m Date: August 17, 2020 Item No. CONTRACT WITH TREEBIZ, LLC FOR RIGHT OF WAY TREE INVENTORY Proposed Action Staff recommends adoption of the following motion: Move to approve a contract with TREEBIZ, LLC to conduct a tree inventory along the City right-of-way (ROW) boulevards. Overview To continue to effectively manage emerald ash borer, street tree maintenance, and manage pruning/removals in advance of street improvement projects, the City needs to complete the right- of-way tree inventory. In addition, the map-based data will increase the ability of staff to track maintenance activities on a tree-by-tree basis like other City infrastructure are currently managed. In 2017, a contractor performed a statistical sample tree inventory that predicted there are approximately 9,485 trees growing in the City ROW/boulevard areas, of which 1,700 are ash trees. At that time, the sample provided a cost-effective and accurate estimate with a sample size that represents the total tree population data including average size, species, physical condition and health. In August 2020, there are 3,953 trees mapped on the ROW inventory, of which 1,674 are ash. Staff estimates there are about 6,000 more tree records that need to be captured to reach a complete inventory. There are several sections of SW Lakeville that still need ROW ash included into the inventory so they can receive protective injections. The City solicited proposals for tree inventory services in August 2020 from two local contractors who have performed high quality work for Staff in the past. One proposal was received with a per- tree-price of $2.74, or approximately $16,440.00 to gather 6,000 more ROW tree records. The second contractor decided they would not have time to meet the deadlines provided. Although there is only one proposal, the cost is extremely competitive and is well within the $25,000 grant awarded by the MN DNR to perform a comprehensive inventory. Furthermore, the average price- per-tree is $3.50-$4.50 in this market to collect the data points listed in the specifications. Staff recommends approval of the contract with TreeBiz, LLC. Primary Issues to Consider • Why is a tree inventory needed now? Lakeville Forestry was awarded a “Managing Ash for EAB in Community Forests Ash” grant in order to proactively plan and budget for the non- native invasive emerald ash borer (EAB). Since the inventory will also provide data on species diversity and health/condition of trees on City owned ROW areas, the map-based data provides a way for trees to be managed like other infrastructure after they are pruned or treated. 2 Supporting Information • A copy of the proposal tabulation and contractor list is attached. Financial Impact: $16,440.00 Budgeted: Yes Source: MN DNR Grant Related Documents (CIP, ERP, etc.): Envision Lakeville Community Values: Good Value for Public Services Report Completed by: Emily Ball, Forester TABULATION OF PROPOSALS City of Lakeville ROW Tree Inventory Contractor Proposal Total TreeBiz, LLC $16,440.00 Tree Quality Decided not to submit proposal due to time constraint CONTRACT FOR SERVICES THIS AGREEMENT made this 17 day of August 2020, by and between the CITY OF LAKEVILLE, hereinafter referred to as the “City”, and TreeBiz, LLC., hereinafter referred to as the “Contractor”. THE CITY AND THE CONTRACTOR, FOR THE CONSIDERATION HEREINAFTER STATED, AGREE AS FOLLOWS: 1. SCOPE OF SERVICES. The scope of services is detailed in the Contract Documents but generally consist of tree inventory services at locations specified by the City. The Contractor agrees to perform the services as detailed in the Contract Documents. 2. CONTRACT DOCUMENTS. The following documents shall be referred to as the "Contract Documents", all of which shall be taken together as a whole as the contract between the parties as if they were set verbatim and in full herein: A. This document entitled “Contract for Services”. B. Instructions to Contractors C. General Specifications D. Contractor’s Proposal dated August 12, 2020 If there is a conflict among the provisions of the Contract, the order in which they are listed above shall control in resolving any such conflicts with Contract Document "A" having the first priority and Contract Document "D" having the last priority. 3. OBLIGATIONS OF THE CONTRACTOR. A. The Contractor agrees that the work contemplated by the Contract shall be fully and satisfactorily completed in accordance with the terms of the Contract Documents. B. Contractor shall exercise the same degree of care, skill, and diligence in the performance of the services as is ordinarily possessed and exercised by a contractor under similar circumstances. No other warranty, expressed or implied, is included in this Agreement. City shall not be responsible for discovering deficiencies in the accuracy of Contractor’s services. C. The Contractor shall complete the work no later than October 23, 2020. 4. PAYMENT. A. The City agrees to pay, and the Contractor agrees to receive and accept payment in accordance with the prices quoted, not to exceed $16,440.00, which are inclusive of sales tax, as set forth in the Contractor’s Proposal. Payment to the Contractor shall be made based on work completed and submission and approval of an invoice. B. Payments to Subcontractor. Pursuant to Minn. Stat. § 471.425, Subd. 4a, the Contractor must pay any subcontractor within ten (10) days of the Contractor’s receipt of payment from the City for undisputed services provided by the subcontractor. The Contractor must pay interest of 1½ percent per month or any part of a month to the subcontractor on any undisputed amount not paid on time to the subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100.00 or more is $10.00. For an unpaid balance of less than $100.00, the Contractor shall pay the actual penalty due to the subcontractor. 5. INDEMNIFICATION. A. The Contractor shall indemnify, defend and hold harmless the City and its officials, agents, representatives, and employees from any loss, claim, liability and expense (including reasonable attorney’s fees and expenses of litigation) with respect to: (a) Worker’s Compensation benefits payable on account of injury or death to any Contractor employee or to any employee of Contractor’s subcontractors, where the injury or death arises out of or is in any way related to the work performed or to be performed under the Contract; (b) claims for personal injury, death, or property damage or loss asserted by a Contractor or subcontractor or any of their officers, agents, representatives, or employees where the injury, death, damage, or loss arises out of or is in any way related to the work performed or to be performed under the Contract; and (c) claims for personal injury, death, or property damage or loss as asserted by third-parties at the work site, where the claim is based in the whole or in any part on, or is in any way related to, any act or omission by Contractor, or Contractor’s subcontractors, agents, employees or delegates. B. Contractor shall agree that the indemnities stated above shall be construed and applied in favor of indemnification. To the extent permitted by law, the stated indemnities shall apply regardless of any strict liability or negligence attributable to the City and regardless of the extent to which the underlying harm is attributable to the negligence or otherwise wrongful act or omission (including breach of contract) of Contractor, its subcontractors, agents, employees or delegates. Contractor also agrees that if applicable law limits or precludes any aspect of the stated indemnities, then the indemnities will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnities continue until all applicable statutes of limitations have run. C. If a claim arises within the scope of the stated indemnity, the City may require Contractor to furnish a written acceptance of tender of defense and indemnity from Contractor’s insurance company. Contractor will take the action required by City within fifteen (15) days of receiving notice from City. 6. RIGHTS AND REMEDIES. A. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. B. No action or failure to act by the City or the Contractor shall constitute a waiver of any right or duty afforded by any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 7. GOVERNING LAW. The Contract shall be governed by the laws of the State of Minnesota. 8. INSURANCE. Prior to the start of the project, Contractor shall furnish to the City a certificate of insurance showing proof of the required insurance required under this Paragraph. Contractor shall take out and maintain or cause to be taken out and maintained until six (6) months after the City has accepted the public improvements, such insurance as shall protect Contractor and the City for work covered by the Contract including workers’ compensation claims and property damage, bodily and personal injury which may arise from operations under this Contract, whether such operations are by Contractor or anyone directly or indirectly employed by either of them. The minimum amounts of insurance shall be as follows: Commercial General Liability (or in combination with an umbrella policy) $2,000,000 Each Occurrence $2,000,000 Products/Completed Operations Aggregate $2,000,000 Annual Aggregate The following coverages shall be included: Premises and Operations Bodily Injury and Property Damage Personal and Advertising Injury Blanket Contractual Liability Products and Completed Operations Liability Automobile Liability $2,000,000 Combined Single Limit – Bodily Injury & Property Damage Including Owned, Hired & Non-Owned Automobiles Workers Compensation Except as provided below, Contractor must provide Workers’ Compensation insurance for all its employees and, in case any work is subcontracted, Contractor will require the subcontractor to provide Workers’ Compensation insurance in accordance with the statutory requirements of the State of Minnesota, including Coverage B, Employer’s Liability. Insurance minimum limits are as follows: $500,000 – Bodily Injury by Disease per employee $500,000 – Bodily Injury by Disease aggregate $500,000 – Bodily Injury by Accident If Minnesota Statute 176.041 exempts Contractor from Workers’ Compensation insurance or if the Contractor has no employees in the City, Contractor must provide a written statement, signed by an authorized representative, indicating the qualifying exemption that excludes Contractor from the Minnesota Workers’ Compensation requirements. If during the course of the contract the Contractor becomes eligible for Workers’ Compensation, the Contractor must comply with the Workers’ Compensation insurance requirements herein and provide the City with a certificate of insurance. Professional/Technical (Errors and Omissions) Liability Insurance This policy will provide coverage for all claims the contractor may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Contractor’s professional services required under the contract. Contractor is required to carry the following minimum limits: $1,000,000 – per claim or event $2,000,000 – annual aggregate Any deductible will be the sole responsibility of the Contractor and may not exceed $50,000 without the written approval of the City. If the Contractor desires authority from the City to have a deductible in a higher amount, the Contractor shall so request in writing, specifying the amount of the desired deductible and providing financial documentation by submitting the most current audited financial statements so that the City can ascertain the ability of the Contractor to cover the deductible from its own resources. The retroactive or prior acts date of such coverage shall not be after the effective date of this Contract and Contractor shall maintain such insurance for a period of at least three (3) years, following completion of the work. If such insurance is discontinued, extended reporting period coverage must be obtained by Contractor to fulfill this requirement. The Contractor’s insurance must be “Primary and Non-Contributory”. All insurance policies (or riders) required by this Contract shall be (i) taken out by and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State of Minnesota, (ii) shall name the City, its employees and agents as additional insureds (CGL and umbrella only) by endorsement which shall be filed with the City. A copy of the endorsement must be submitted with the certificate of insurance. Contractor’s policies and Certificate of Insurance shall contain a provision that coverage afforded under the policies shall not be cancelled without at least thirty (30) days’ advanced written notice to the City, or ten (10) days’ notice for non-payment of premium. An Umbrella or Excess Liability insurance policy may be used to supplement Contractor’s policy limits on a follow-form basis to satisfy the full policy limits required by this Contract. 9. TERM. The term of this Contract shall be from the effective date of the executed contract to the completion of all work contemplated by this contract or October 23, 2020, unless sooner terminated as hereinafter provided. 10. SUPPLIES, EQUIPMENT, AND INCIDENTALS. The City and Contractor agree that the Contractor shall furnish any and all supplies, equipment, and incidentals necessary for Contractor’s performance of this Contract. 11. SUPERVISION OF CONTRACTOR. The City’s designated supervisor will be Emily Ball, City Forester. The City Forester, acting on the City’s behalf, shall be responsible for providing communication and direction as to the provision of services by the Contractor under this Contract. The Contractor will contact the City of Lakeville to supply the dates and the times they will perform work. The City Forester’s mailing address is: 20195 Holyoke Avenue, Lakeville, MN 55044; telephone numbers are: (W) 952-985-2724; (C) 952-836-4511; email address is eball@lakevillemn.gov. 12. TERMINATION WITHOUT CAUSE BY CITY. The City reserves the right to terminate Contractor at will immediately without cause at any time within the term of this Contract. In the event of such termination, the City shall provide Contractor written notice of termination and upon receipt of same, Contractor shall immediately cease and desist Contractor’s provision of services under this Contract and City shall have no further obligation under this Contract to pay any further compensation to Contractor except for compensation due and owing for services prior to Contractor’s receipts of the written notice of termination. 13. INDEPENDENT CONTRACTOR. City and Contractor agree that Contractor, while engaged in carrying out and complying with the terms and conditions of this Contract and the provision of services thereunder, shall be considered at all times an independent contractor and not an officer, employee, or agent of the City. City and Contractor further agree that Contractor shall not at any time or in any manner represent that Contractor or any of the Contractor’s agents or employees are in any manner agents or employees of the City. City and Contractor further agree that Contractor shall be exclusively responsible under this Contract for Contractor’s own FICA payment, workers compensation payments, unemployment compensation payments, withholding amounts, and/or self-employment taxes or other taxes if any such payments, amounts, or taxes are required to be paid by law or regulations. 14. WRITTEN NOTICE OR OTHER CORRESPONDENCE. Any written notice or other correspondence to be provided by or between the City and the Contractor in accordance with this Contract shall be hand delivered or mailed by registered or certified mail to the following address: CITY: City of Lakeville 20195 Holyoke Avenue Lakeville MN 55044 CONTRACTOR: 15. WAIVER OF DEFAULT. Any waiver by City of a default under the provisions of this Contract by Contractor shall not operate or be construed as a waiver of a subsequent default by the Contractor. No waiver shall be valid unless in writing and signed by the Mayor and the City Administrator on behalf of the City. 16. NO ASSIGNMENT OR SUBCONTRACTING. The City and Contractor agree that the services to be rendered by the Contractor under this Contract are unique and personal. Accordingly, the Contractor may not assign or subcontract out any of the Contractor’s rights or any of the Contractor’s duties or obligations under this Contract. 17. INVALIDITY OF PROVISIONS. If any term or provision of this Contract or any application hereof to any person or circumstances, shall to any extent be invalid or unenforceable, the remainder of this Contract or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be effected hereby and each term and provision of this Contract shall be valid and be enforced to the fullest extent permitted by law. 18. DATA PRACTICES/RECORDS. A. All data created, collected, received, maintained, or disseminated for any purpose in the course of this Contract is governed by the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, any other applicable state statute, or any state rules adopted to implement the act, as well as federal regulations on data privacy. B. All books, records, documents, and accounting procedures and practices of the Contractor and its subcontractors, if any, relative to this Contract are subject to examination by the City and the State of Minnesota for a period of 6 years. 19. WARRANTY. The Contractor shall be held responsible for any and all defects in workmanship, materials, and equipment which may develop in any part of the contracted service, and upon proper notification by the City shall immediately replace, without cost to the City, any such faulty part or parts and damage done by reason of the same in accordance with the proposal specifications. 20. ENTIRE AGREEMENT. This instrument herein contains the entire and only agreement between the parties and no oral statement or representation, or prior written matter not contained in this instrument shall have any force and effect. This Contract shall not be modified in any way except by writing executed by both parties. TreeBiz LLC 2275 Highland Parkway St. Paul, MN 55116 21. DISCRIMINATION. Contractor agrees to comply with Minnesota Statute 181.59 that states: Subsection A. That, in the hiring of common or skilled labor for the performance of any work under any contract, or any subcontract, no contractor, material supplier or Contractor, shall, by reason of race, creed, or color, discriminate against the person or persons who are citizens of the United States or resident aliens who are qualified and available to perform the work to which the employment relates; Subsection B. That no contractor, material supplier, or Contractor, shall, in any manner, discriminate against, or intimidate, or prevent the employment of any person or persons identified in clause (1) of this section, or on being hired, prevent, or conspire to prevent the person or persons from the performance of work under any contract on account of race, creed, or color; Subsection C. That a violation of this section is a misdemeanor; and Subsection D. That this contract may be canceled or terminated by the state, county, city, town, school board, or any other person authorized to grant the contracts for employment, and all money due, or to become due under the contract, may be forfeited for a second or any subsequent violation of the terms or conditions of this contract. 22. WORK HOURS. Working hours shall be restricted to the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday. Weekend work shall be approved ahead of time by the City and would be restricted to Saturday 8am-5pm, with no work on Sunday. Changes to those hours should be coordinated with the City. 23. BACKGROUND CHECKS. The City must receive from the Contractor and each Contractor’s employee written authorization permitting the City of Lakeville Police Department to perform a criminal history background check and further authorize the Police Department to release the information obtained to the Lakeville City Council, City Administrator and other appropriate employees. The City reserves the right to deny access to City facilities to those Contractors or Contractor’s employees that it deems inappropriate 24. MINNESOTA DEPARTMENT OF NATURAL RESOURCES GRANT. The Contractor shall comply with all provisions of the Minnesota State Grant Contract between the State and the City attached hereto as Exhibit A (“Grant Contract”) that are applicable to the Contractor as a subcontractor under the Grant Contract. CITY OF LAKEVILLE BY: Douglas P. Anderson, Mayor AND Charlene Friedges, City Clerk CONTRACTOR: BY: (Print Name) Its: