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18-0306_BRIGHTVIEW LANDSCAPE SERVICES, INC._Agenda Report_E13 3/6/2018 E13 MU16 City of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Oenjamin Siegel, City Manager SUBMITTED BY: Steve May, Public Works & Utilities Director PREPARED BY: Tom Toman, Assistant Public Works Director DATE: March 6, 2018 SUBJECT: Approval of Consent to Assignment Agreement between the City, Brightview Landscape Services Inc., and Marina Landscape Maintenance Inc., for Landscape Maintenance and Repair Services RECOMMENDATION: Approve and authorize the City Manager to execute the attached Consent to Assignment Agreement between the City, Brightview Landscape Services Inc., and Marina Landscape Maintenance Inc., for Landscape Maintenance and Repair Services. DISCUSSION/ANALYSIS: Since May 2015, the City has contracted with Marina Landscape Maintenance Inc. (Marina), for landscape maintenance and repair services for City facilities, parks, parkways and medians, sports fields, landscape maintenance districts, and open space. On January 1, 2017, Brightview Landscape Services Inc. (Brightview) purchased all assets and contracts of Marina. On January 1, 2018, Marina officially transitioned all administrative and field operations to Brightview, with all personnel and levels of service remaining the same under the existing agreement with the City. A copy of the Personal Services Agreement between the City and Marina is included as Attachment 1. Pursuant to Section 5 of the Agreement, "Limitations upon Subcontracting and Assignment," the Assignment shall not be operative except upon the written consent of the City, and any attempted assignment without such consent shall be invalid and void. In accordance with that provision of the Agreement, both Marina and Brightview wish to obtain the City's consent to the assignment. Staff and the City Attorney have prepared the attached Consent to Assignment Agreement (Attachment 2) between the parties. Staff recommends that the City Council approve and authorize the City Manager to City Council Agenda Report March 6, 2018 Page 2 of 2 execute the Consent to Assignment Agreement between the City, Brightview, and Marina. FISCAL IMPACT: The recommended action would have no fiscal impact. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: On May 19, 2015, the City Council approved a Personal Services Agreement with Marina Landscape Maintenance Inc. to perform landscape maintenance and repair services for City facilities, parks, parkways and medians, sports fields, open space, and landscape maintenance districts for a three-year period commencing on July 1, 2015, and authorized the City Manager to approve three, one year optional extensions based on staff review of satisfactory contractor performance. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not require commission, committee, or board review. NOTIFICATIONS: Brightview Landscape Services Inc. Marina Landscape Maintenance Inc. ATTACHMENTS: Attachment 1: Personal Services Agreement - Marina Landscape Maintenance Inc. Attachment 2: Proposed Consent to Assignment Agreement PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this l(A�day of K2015, by and between the City of City of San Juan Capistrano (hereinafter referred , as the"City") and Marina Landscape Maintenance, Inc. (hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor regarding the City's proposal to provide landscape maintenance and repair services for City Facilities, City Parks, City Parkways and Medians, City Sport Fields, Landscape Maintenance Districts, Los Rios Park, Open Space, and Reata Park and Event Center; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Contractor shall consist of those tasks as set forth in Exhibit'A,"attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on July 1, 2015 and continue for a three year period of time with the option of three (3) one-year extensions.Agreement extensions shall be based on staff review of the Contractor performance and at the discretion of the City Manager. The Agreement will terminate on June 30, 2018, unless extended as provided herein. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed the total amount in the City's adopted fiscal year operating and capital improvement budget for landscape maintenance and repair services, payable at the rates as set forth in Exhibit "B", and Exhibit"C" Drought Response modifications as required,attached and incorporated herein by reference. The City shall issue purchase orders equal to the anticipated Contractor fees on an annual basis, which shall constitute the Contractor's authorization to proceed. Attachment 1, Page 1 of 9 3.2 Method of Payment. Subject to Section 3.1, Contractor shall submit monthly invoices based on total services which have been satisfactorily completed for such monthly period. The City will pay monthly progress payments based on approved invoices in accordance with this Section. Section 4. Independent Contractor. It is agreed that Contractor shall act and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Contractor undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City,the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Contractor's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Contractor warrants that: (1) it has investigated the work to be performed; (2) it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 2 Attachment 1, Page 2 of 9 Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law. Contractor shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Contractor. Section 11. (RESERVED]. Section 12. [RESERVED(. Section 13. Indemnity. To the fullest extent permitted by law, Contractor agrees to protect,defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Contractor, Contractor's agents, officers, employees, subcontractors, or independent contractors hired by Contractor in the performance of the Agreement. The only exception to Contractor's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Contractor, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to 3 Attachment 1, Page 3 of 9 the City. Contractor shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A-Class VII or better. Insurance Coverage Required. The policies and amounts of insurance required hereunder shall be as follows: 14.1. Comprehensive General Liability. Comprehensive General Liability Insurance which affords coverage including completed operations and contractual liability, with limits of liability of not less than $5,000,000 per occurrence and $5,000,000 annual aggregate for liability arising out of Contractor's performance of this Agreement.The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: Name the City of San Juan Capistrano and its employees, representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional insured for claims arising out of Contractor's performance of this Agreement. Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. 14.2 Automobile Liability. Automobile Liability Insurance with a limit of liability of not less than $5,000,000 each occurrence and $5,000,000 annual aggregate is required. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all "owned,""hired" and "non-owned" vehicles, or coverage for"any auto." Such insurance shall be endorsed to: Name the City of San Juan Capistrano and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor's performance of this Agreement. Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. 4 Attachment 1, Page 4 of 9 A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. 14.3 Workers' Compensation. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement is required. Such insurance shall be endorsed to: Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. 14.4 Evidence of Insurance. Contractor shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non-renewed, or materially changed for any reason, without thirty(30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. Signed insurance certificates, endorsements and the general liability declaration page must be sent via email from Contractor's insurance broker/agent to the City at mmorris@sanjuancapistrano.org. Certificate Holder: City of San Juan Capistrano, California 32400 Paseo Adelanto San Juan Capistrano, CA 92675 14.6 Endorsements. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sale" liability of Contractor 4. Contain any other exclusion contrary to the Agreement. 14.6 Deductible. 5 Attachment 1, Page 5 of 9 Any Deductible in Excess of $50,000 and/or Self-Insured Retentions must be approved in writing by the City. 14.7 Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A VII or higher and authorized to do business in the State of California or approved in writing by the City. 14.8. Insurance of Subcontractors. Contractor shall be responsible for causing Subcontractors to maintain the same types and limits of coverage in compliance with this Agreement, including naming the City as an additional insured to the Subcontractor's policies. 14.9 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate,nor shall they be cancelled, nor the coverages reduced, until after thirty(30)days'written notice is given to City,except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.10 Terms of Compensation. Contractor shall not receive any compensation until all insurance provisions have been satisfied. 14.11 Notice to Proceed. Contractor shall not proceed with any work under this Agreement until the City has issued a written"Notice to Proceed"verifying that Contractor has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Contractor. In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. 6 Attachment 1, Page 6 of 9 Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Keith Van Der Maaten To Contractor: Marina Landscape Maintenance, Inc. 1900 S. Lewis Street Anaheim, CA 92805 Attn: Robert B. Cowan Section 17. Prevailing-Wanes. Contractor hereby expressly acknowledges and agrees that the City has not previously affirmatively represented to the Contractor in writing or otherwise, in a call for bids or otherwise, that the work to be covered by this Agreement is not a"public work," as defined in Section 1720 of the Labor Code. Contractor shall indemnify, protect, defend and hold harmless the City and its officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense and/or"increased costs" (including reasonable attorneys'fees, court and litigation costs, and fees of expert witnesses) which, in connection with the work contemplated by this Agreement, including,without limitation, any and all public works(as defined by applicable law), results or arises in any way from any of the following: (1) the noncompliance by Contractor of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages and hire apprentices); (2)the implementation of Section 1781 of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (3)failure by Contractor to provide any required disclosure or identification as required by Labor Code Section 1781, as the same may be amended from time to time, or any other similar law. It is agreed by the parties that, in connection with the work contemplated by this Agreement, including, without limitation, any and all public works (as defined by applicable law), Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. "Increased costs," as used in this paragraph, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the work by Contractor. 7 Attachment 1, Page 7 of 9 Section 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19, Entire Agreement, This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Section 20. Counterparts. This Agreement may be executed by the Parties in counterparts,which counterparts shall be construed together and have the same effect as if all the Parties had executed the same instrument. Counterpart signatures may be transmitted by facsimile, email, or other electronic means and has the same force and effect as if they were original signatures. 8 Attachment 1, Page 8 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. C1 O SA�JU C TRANU By: Derek Reeve, Mayor CONTRAC R By: C ntractor A E ri 'WOTAS, City CI APPROVED AS TO FORM: Cit 'Aftafngy 9 Attachment 1, Page 9 of 9 CITY OF SAN JUAN CAPISTRANO CONSENT TO ASSIGNMENT AGREEMENT THIS CONSENT TO ASSIGNMENT AGREEMENT ("Consent") is made as of this day of , 2018 ("Effective Date"), by and among the City of San Juan Capistrano ("City"), Marina Landscape Maintenance, Inc. ("Assignor"), and BrightView Landscape Services, Inc., a California corporation ("Assignee"). City, Assignor and Assignee may be individually referred to herein as a "party," and collectively referred to as the "parties." RECITALS A. City and Assignor have entered into an Agreement for landscape maintenance and repair services for City Facilities, City Parks, City Parkways and Medians, City Sport Fields, Landscape Maintenance Districts, Los Rios Park, Open Space, and Reata Park and Event Center dated May 19, 2015 ("Agreement"). A copy of the Agreement is attached hereto as Exhibit A and incorporated herein by this reference. B. Assignor now desires to obtain the Consent of the City to assign to Assignee all of its rights, duties, and obligations in, to, and under the Agreement ("Assignment") pursuant to that Agreement. C. Pursuant to Section 5 of the Agreement, "Limitations Upon Subcontracting and Assignment," the Assignment shall not be operative except upon the written consent of the City and any attempted assignment without such consent shall be invalid and void. D, Assignor and Assignee desire to obtain City's consent to the Assignment and City is willing to consent to the Assignment on the following terms and conditions. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants contained in this Consent, and for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows: 1. Representations and Warranties. Assignor and Assignee jointly represent and warrant to the City: 1.1 That Assignee is an organization in good standing as a California corporation and duly qualified to transact business under the laws of the State of California. 1.2 That the execution, delivery and performance of the Agreement by Assignee have been duly authorized. 61147.00150\30610136.1 Attachment 2, Page 1 of 6 2. Assumption and No Release. Assignee expressly assumes, acknowledges and agrees for the benefit of City to be bound by, and to perform and comply with, every obligation of Assignor under the Agreement. City shall have the same rights and remedies as against Assignee as City under the terms and provisions of the Agreement has against Assignor with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full. 3. Insurance and Indemnity. Without limiting Assignee's obligations under the Agreement following the Assignment, the insurance and indemnity provisions applicable to the Agreement are hereby expressly incorporated by reference and shall continue to apply. This provision shall not be interpreted to be exclusionary. 4. References. All references and meaning assigned to the term "Contractor" in the Agreement shall be understood to mean BrightView Landscape Services, Inc., and shall include all of the corresponding rights, obligations and benefits thereof as provided by this Consent and the Agreement. 5. Subsequent Assignments. This Consent does not constitute a consent to any subsequent assignment and does not relieve Assignee or any person claiming under or through Assignee of the obligation to obtain the consent of City under Section 5 of the Agreement to any future assignment. Notwithstanding the foregoing, City may consent to subsequent assignments of the Agreement, or amend the Agreement without notifying Assignor, including but not limited to any of Assignor's guarantors, and without obtaining their consent, and that action by Assignee will not relieve those persons of liability. 6. Default; Breach. In the event of any default or breach of Assignee under the Agreement, City may proceed directly against Assignee, any guarantors, or anyone else liable under the Agreement without first exhausting City's remedies against any other person or entity liable under the Agreement to City. Notwithstanding the foregoing, any act or omission of Assignee or anyone claiming under or through Assignee that violates any of the provisions of the Agreement will be deemed a default under the Agreement by Assignor. 7. Termination. Notwithstanding the parties' desire, intent and agreement to modify the Agreement through the Assignment and this Consent, should the City, at its sole discretion, wish to cancel, void or terminate the Agreement at any future time, the City may do so by providing written notice of termination to Assignee in accordance with the termination provisions of the Agreement. In such an event, simultaneously upon the giving of written notice of termination in accordance with the terms of the Agreement, the Agreement shall be deemed canceled, voided and terminated. 8. Effect of Execution. Assignee's execution of this Consent shall be deemed an execution by Assignee of the Agreement. Upon execution of this Consent, Assignee shall be deemed a signatory and party to the Agreement as if Assignee had directly executed the Agreement. Assignee agrees to be firmly bound by all covenants, obligations and conditions of the Agreement by its execution hereunder. 61147.00150\30610136.1 Attachment 2, Page 2 of 6 9. General Provisions. 9.1 Invalidity. If this Consent or the Assignment is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, the Agreement as originally executed shall nevertheless be deemed to remain in full force and effect as if this Consent and the Assignment had not been made or attempted. 9.2 Severability. If any term or other provision of this Consent is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Consent shall remain in full force and effect. 9.3 Governing Law. This Consent will be construed in accordance with and will be governed by the laws of the State of California. 9.4 Notices. Notices, offers, requests or other communications required or permitted to be given by the parties pursuant to the terms of this Consent shall be given in writing to the respective parties. 9.5 Counterparts. This Consent may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. 9.6 Binding Effect; Assignment. This Consent shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives and successors, and nothing in this Consent, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Consent. Assignee may not assign this Consent nor any rights or obligations hereunder, without the prior written consent of the City, and any such assignment shall be void. 9.7 Authority. Each of the parties hereto represents to the other parties that (a) it has the requisite power and authority to execute, deliver and perform this Consent; (b) the execution, delivery and performance of this Consent by it have been duly authorized by all necessary corporate or other actions; (c) it has duly and validly executed and delivered this Consent; and (d) this Consent is a legal, valid and binding obligation, enforceable against it in accordance with its terms. 9.8 Interpretation. The headings to sections contained in this Consent are included for reference purposes only and shall not affect or modify in any way the meaning or interpretation of this Consent. 9.9 Attorneys' Fees. Should any of the parties initiate any action at law or in equity to enforce or interpret the terms of this Consent, the prevailing party(ies) shall be entitled to reasonable attorneys' fees and legal costs from the non-prevailing party(ies) in addition to any other appropriate relief. 61147.00150\30610136.1 Attachment 2, Page 3 of 6 9.10 Waiver. Except as explicitly stated in this Consent, nothing contained in this Consent will be deemed or construed to modify, waive, impair, or affect any of the covenants, agreements, terms, provisions, or conditions contained in the Agreement. In addition, City's acceptance and waiver of any breach of this Consent by Assignee, Assignor or anyone else liable under the Agreement will not be deemed a waiver by City of any other provision of this Consent or the Agreement. 9.11 Entire Agreement; Amendment. This Consent constitutes the final, complete and exclusive statement between the parties to this Consent pertaining to the terms of City's consent to the Assignment, and supersedes all prior and contemporaneous written and oral agreements. No party has been induced to enter into this Consent by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Consent. Any agreement made after the date of this Consent is ineffective to modify, waive or terminate this Consent, in whole or in part, unless that agreement is in writing, is signed by the City and Assignee, and specifically states that agreement modifies this Consent. [SIGNATURES ON FOLLOWING PAGE] 61147.00150\30610136.1 Attachment 2, Page 4 of 6 WHEREFORE, the City, Assignor and Assignee have executed this Consent as of the Effective Date first set forth above. FOR CITY: FOR ASSIGNOR: City of San Juan Capistrano Marina Landscape Maintenance, Inc. By: By: Printed Name: Printed Name: Its: Its: FOR ASSIGNEE: BrightView Landscape Services, Inc. By: Printed Name: Its: ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: 0 ff Blinger, C Attorney 61147.00150130610136.1 Attachment 2, 5 of 6 EXHIBIT A AGREEMENT [Attached Behind This Page] 61147.00150\30610136.1 Attachment 2, Page 6 of 6