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2022-86CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA DATE: November 28, 2022 RESOLUTION NO: MOTION BY: McDonald SECONDED BY: 2022-86 Rehm A RESOLUTION AUTHORIZING ENTERING INTO A CONTRACT WITH RAINBOW TREECARE FOR EMERALD ASH BORER TREATMENT WHEREAS, the City values its public ash trees and the economic, environmental, and social benefits they provide to the community; and WHEREAS, boulevard and park trees are considered green infrastructure and an asset to the community; and WHEREAS, Emerald Ash Borer is an introduced pest that attacks and kills all ash trees; and WHEREAS, the City solicited proposals for the chemical treatment of ash trees for their protection from emerald ash borer; and WHEREAS, two proposals were received and evaluated by City Staff. NOW, THEREFORE, BE IT RESOLVED that the Chanhassen City Council hereby authorizes entering into a two-year contract with an option for a two-year extension with Rainbow Treecare for Emerald Ash Borer Treatments. PASSED AND ADOPTED by the Chanhassen City Council this 28t' day of November, 2022. ATTEST: Ryan McDonald Campion Rehm Schubert Elise Ryan, Mayor ABSENT DocuSign Envelope ID: 38F8ECBE-0757-44F1-BD1A-8F2385832AF6 PROFESSIONAL SERVICES AGREEMENT made this O day of NOV�W)6ff,20' , b and between AGREEMENT �Y Y the CITY OF CHANHASSEN, a Minnesota municipal corporation ("City") and RAINBOW TREE CARE "Contractor") . IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES AGREE AS FOLLOWS: 1. SCOPE OF SERVICES. The City retains Contractor for emerald ash borer treatments. The Contractor shall complete the work on City owned trees no later than August 30th of 2023 and 2024 and complete work on Private Property ash trees no later than September 30th of 2023 and 2024 or before fall leave change, whichever arrives first. 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 Professional Services Agreement; B. Request for quote — Emerald Ash Borer Treatment Project, dated Oct. 11, 2022; C. Insurance Certificate; D. Contractor Rainbow Treecare's, 2022 proposal for Tree Injection Services ("Proposal"). In the event of conflict among the provisions of the Contract Documents, 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. COMPENSATION. Contractor shall be paid by the City for the services described in the Proposal a not to exceed fee of Thirty-five Thousand Dollars ($35,000) annually, inclusive of expenses. Services performed directly by Contractor shall be paid at a diameter inch rate of $4.3 5 in accordance with the Proposal, subject to the not to exceed fee. The not to exceed fees and expenses shall not be adjusted if the estimated hours to perform a task, the number of required meetings, or any other estimate or assumption is exceeded. Contractor shall bill the City at the completion of the project. Payment shall be made by the City within thirty-five (3 5) days of receipt of an invoice. 4. DOCUMENT OWNERSHIP. All reports, plans, models, diagrams, analyses, and information generated in connection with performance of this Agreement shall be the property of the City. The City may use the information for its purposes. 201749v1 DocuSign Envelope ID: 38F8ECBE-0757-44F1-BD1A-8F2385832AF6 5. CHANGE ORDERS. All change orders, regardless of amount, must be approved in advance and in writing by the City. No payment will be due or made for work done in advance of such approval. 6. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder, Contractor shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. 7. STANDARD OF CARE. 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 professional 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. 8. INDEMNIFICATION. Contractor shall indemnify and hold harmless the City, its officers, agents, and employees, of and from any and all claims, demands, actions, causes of action, including costs and attorney's fees, arising out of or by reason of the execution or performance of the services provided for herein and further agrees to defend at its sole cost and expense any action or proceeding commenced for the purpose of asserting any claim of whatsoever character arising hereunder. 9. INSURANCE. Contractor shall secure and maintain such insurance as will protect Contractor from claims under the Worker's Compensation Acts, automobile liability, and from claims for bodily injury, death, or property damage which may arise from the performance of services under this Agreement. Such insurance shall be written for amounts not less than: Commercial General Liability $2,000,000 each occurrence/aggregate Automobile Liability $2,000,000 combined single limit Professional Liability $2,000,000 each occurrence/aggregate The City shall be named as an additional insured on the general liability policy on a primary and non- contributory basis. Before commencing work, the Contractor shall provide the City a certificate of insurance evidencing the required insurance coverage in a form acceptable to City. 10. INDEPENDENT CONTRACTOR. The City hereby retains Contractor as an independent contractor upon the terms and conditions set forth in this Agreement. Contractor is not an employee of the City and is free to contract with other entities as provided herein. Contractor shall be responsible for selecting the means and methods of performing the work. Contractor shall furnish any and all supplies, equipment, and incidentals necessary for Contractor's performance under this Agreement. City and Contractor agree that Contractor shall not at any time or in any manner represent that Contractor or any of Contractor's agents or employees are in any manner agents or employees of the City. Contractor shall be exclusively responsible under this Agreement for Contractor's own FICA payments, workers compensation payments, unemployment compensation payments, 2 201749v1 DocuSign Envelope ID: 38F8ECBE-0757-44F1-BD1A-8F2385832AF6 withholding amounts, and/or self-employment taxes if any such payments, amounts, or taxes are required to be paid by law or regulation. 11. SUBCONTRACTORS. Contractor shall not enter into subcontracts for services provided under this Agreement without the express written consent of the City. Contractor shall comply with Minnesota Statutes § 471.425. Contractor must pay subcontractors for all undisputed services provided by subcontractors within ten (10) days of Contractor's receipt of payment from City. Contractor must pay interest of one and five -tenths percent (1.5%) per month or any part of a month to subcontractors on any undisputed amount not paid on time to subcontractors. The minimum monthly interest penalty payment for an unpaid balance of One Hundred Dollars ($100.00) or more is Ten Dollars ($10.00). 12. CONTROLLING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. In the event of litigation, the exclusive venue shall be in the District Court of the State of Minnesota for Carver County Minnesota. 13. MINNESOTA GOVERNMENT DATA PRACTICES ACT. Contractor must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by Contractor pursuant to this Agreement. Contractor is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.08, as if it were a government entity. In the event Contractor receives a request to release data, Contractor must immediately notify City. City will give Contractor instructions concerning the release of the data to the requesting party before the data is released. Contractor agrees to defend, indemnify, and hold City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from Contractor's officers', agents', city's, partners', employees', volunteers', assignees' or subcontractors' unlawful disclosure and/or use of protected data. The terms of this paragraph shall survive the cancellation or termination of this Agreement. 14. COPYRIGHT. Contractor shall defend actions or claims charging infringement of any copyright or software license by reason of the use or adoption of any software, designs, drawings or specifications supplied by it, and it shall hold harmless the City from loss or damage resulting therefrom. 15. PATENTED DEVICES, MATERIALS AND PROCESSES. If the Contract requires, or the Contractor desires, the use of any design, devise, material or process covered by letters, patent or copyright, trademark or trade name, the Contractor shall provide for such use by suitable legal agreement with the patentee or owner and a copy of said agreement shall be filed with the City. If no such agreement is made or filed as noted, the Contractor shall indemnify and hold harmless the City from any and all claims for infringement by reason of the use of any such patented designed, device, material or process, or any trademark or trade name or copyright in connection with the services agreed to be performed under the Contract, and shall indemnify and 3 201749v1 DocuSign Envelope ID: 38F8ECBE-0757-44F1-BD1A-8F2385832AF6 defend the City for any costs, liability, expenses and attorney's fees that result from any such infringement. 16. RECORDS. Contractor shall maintain complete and accurate records of hours worked and expenses involved in the performance of services. 17. ASSIGNMENT. Neither party shall assign this Agreement, or any interest arising herein, without the written consent of the other parry. 18. WAIVER. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 19. ENTIRE AGREEMENT. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof, as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 20. TERMINATION. This Agreement may be terminated by the City for any reason or for convenience upon written notice to the Contractor. In the event of termination, the City shall be obligated to the Contractor for payment of amounts due and owing including payment for services performed or furnished to the date and time of termination. Dated: 2 Dated:11/21/2022 20 CITY OF CHANHASSEN BY: �. d ETTse Ryan, Mayor (/ BY: AAIVK Of" V UM11) Laurie Hokkanen, City Manager Rainbow Treecare DocuSigned by: B��� Y: yan Spencer Its Municipal Consulting Arborist F. 201749v1