In Fiscal Year (FY) 2018/19, the City solicited competitive bids from tree service contractors, and five (5) contractors were awarded on-call, as-needed services contracts based on hourly rates provided in their bid proposals. All five of these contracts were extended by Change Orders, first through FY 2019/20 and now into FY 2020/21.
In June 2020, all five on-call tree service contractors were contacted by the City Forester, via email, to provide a quote for removal of a declining pine tree located on Monterey Street 2 SE of First Avenue. The pine, hereinafter referred to as the "correct tree," was marked with a pink “X” on the side. The email issued by the Forester contained a description of the work, in this case removing a tree, the location of the tree, the type of tree and its characteristics, and any markings.
Three of the five tree service contractors provided quotes for the tree removal work based on their prevailing wages and equipment rates included with their original bid proposal. John Ley Tree Service provided the lowest quote and was awarded this Task Order.
From the beginning of the quote process, Mr. Ley mistakenly recognized a different pine tree (hereinafter referred to as the "incorrect tree") at First Avenue 2 SW of Monterey Street. The incorrect pine tree met the general description of the correct tree, but it did not have the pink X mark. Specifically, the incorrect pine tree was also in decline and was described as having poor structure due to leaning with many large limbs attached at one point. In the not to distant future, this tree would have been slated for removal.
In the late afternoon of October 2, 2020, a pedestrian encountered the City Forester alerting her to the fact that an unmarked tree was being removed by a contractor. The next morning, John Ley called the City Forester admitting to making a mistake and cutting the wrong tree down.
The Public Works Director and City Forester promptly met with Mr. Ley and discussed what happened, and to determine if there was a breakdown in communication. All indications are that Mr. Ley did not have the email requesting quotes physically with him when he first visited the incorrect tree to provide a price quote, and again, the Task Order was not in his possession when his crews began the removal of the incorrect tree.
At the October 8, 2020 Forest and Beach Commission meeting, Mr. Ley stated that he provided tree service for the City of Carmel for over 20 years, admitted to making this error, and acknowledged that his error was significant to the community. He also took full responsibility for the error, apologized for the loss of the tree, and offered restitution to be identified later. The Commission requested that an agenda item on this matter be included in the November packet.
Subsequent to the Commission meeting, Mr. Ley proposed that there would be no charge to the City to remove the incorrect tree, as well as the stump when the utility lines are disconnected, and that he would remove the correct tree and stump also at no charge.
Attached is the contract between the City and John Ley Tree Service. This contract refers to and incorporates other contract documents, including the bid proposal, general conditions, technical specifications, and references to industry standards.These referenced documents provide more specifics about the extent the City may impose on the contractor, but the legal and/or contractual changes to the contract, if any, should first be based on any Commission recommendations to the City Council.
Below are the most prudent possible outcomes for the Forest and Beach Commission's deliberations. Pros or cons follow each outcome:
Recommended:
- Accept Mr. Ley's apology to the community for making a mistake.
- Accept Mr. Ley's offer to absorb all costs incurred for tree and stump removals of both the incorrect tree and the correct tree.
- Request staff to send letter to Mr. Ley stating that any future such action would result in immediate termination of the contract.
- Request that Mr. Ley voluntarily plants two new trees in the locations of the two removed trees subject to approval of the City Forester.
Not Recommended:
- Impose a financial penalty equal to the value of the incorrect tree. Since the valuation of the tree cannot be determined after the tree is removed, there is no true nexus for such a fine. Further, the incorrect pine tree was in decline and would have to be removed in the not to distant future.
- Impose a higher penalty and deposit such funds in the City's Forest Restoration Account. This is not recommended as there is no such provisions to do so in the contract.
- Terminate the Contract. While the City can terminate the contract, this is not recommended because it reduces the pool of qualified, local tree contractors. This is particularly critical to remove downed trees immediately following winter storms.
- Suspend the Contract for a period of time, say 3 or 6 months. This is not recommended as it reduces the pool of qualified contractors to submit quotes for routine tree work, potentially resulting in the City to have to pay higher fees to other tree service firms.
In addition, the City Forester has implemented a new procedure during the request for quotes and task order approval process. Specifically, the contractors offering a price quote must provide proof of the correct tree via photography and geolocation of the subject tree using GPS. This new process will be re-evaluated in six (6) months to ensure it is working properly.