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18-0221_BRIGHTVIEW LANDSCAPE SERVICES, INC._Letter Agreement32400 PASEO ADELANro SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 4931053 FAX It It It corpfit au'cgneliunn.o/V FEBRUARY 21, 2018 JOSE SOTO, BRIGHTVIEW LANDSCAPE SERVICES INC. 1900 S. LEWIS STREET ANAHEIM, CA 92805 Dear Mr. Soto, Letter Agreement for Landscape Services MEMBERS OF THE CIN COUNCIL SERGIO FARIAS KERRY K FERGUSON BRIAN L. MARYOTT PAM PATTERSON, ESQ. DEREK REEVE This letter shall be our Agreement ("Letter Agreement") regarding the Landscape Services described below ("Services") to be provided by Brightview Landscape Services Inc. ("Consultant") as an independent contractor to the City of San Juan Capistrano (the "City") for the City's Riding Park Recycled Water Site Conversion ("Project"). Consultant is retained as independent contractor and is not an employee of the City. City and Consultant are sometimes referred to herein as "Party" or "Parties." The Services to be provided include the following: The Services to be provided are more particularly described in the Scope of Services attached hereto as Exhibit "A" and are incorporated herein by reference. Services on the Project shall begin immediately and shall be completed by May 4, 2018, unless extended by the City in writing. Consultant shall perform all Services under this Letter Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California, and consistent with all applicable laws. Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Letter Agreement. Consultant has represented to the City that certain key personnel will perform and coordinate the Services under this Letter Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of equal competence upon written approval of the City. In the event that the City and Consultant cannot agree as to the substitution of key personnel, the City shall be entitled to terminate this Letter Agreement for cause. The key personnel for performance of this Letter Agreement are as follows: Jose Soto Compensation shall be based on the actual amount of time spent in adequately performing the Brightview Letter Agreement - RP RW Site Conversion Brightview Landscape Services Inc. February 21, 2018 Page 2 of 5 Services, and shall be billed at the unit rates indicated in the Consultant's rate sheet, attached hereto as Exhibit "A" and incorporated herein by reference. The total compensation shall include the bid amount of $13,875.00, plus a 10% contingency amount of $1,385.00 for approved change orders, for a total not to exceed amount of $15,260.00 without written approval of the CITY MANAGER. Consultant's invoices shall include a detailed description of the Services performed. Invoices shall be submitted to the City on a monthly basis as performance of the Services progresses. The City shall review and pay the approved charges on such invoices in a timely manner. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Letter Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Since the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements. Consultant shall provide proof of commercial general liability, business auto liability, and professional liability/errors and omissions insurance to the City in amounts and with policies, endorsements and conditions required by the City for the Services. The City, its elected officials, officers, employees, agents and authorized volunteers shall be named as Additional Insureds on Consultant's policies of commercial general liability and automobile liability insurance. If Consultant is an employer or otherwise hires one or more employees during the term of this Project, Consultant shall also provide proof of workers compensation coverage for such employees, which meets all requirements of State law, with endorsements and conditions required by the City. The City may terminate this Letter Agreement at any time with or without cause. If the City finds it necessary to terminate this Letter Agreement without cause before Project completion, Brightview Letter Agreement - RP RW Site Conversion 2 Brightview Landscape Services Inc. February 21, 2018 Page 3 of 5 Consultant shall be entitled to be paid in full for those Services adequately completed prior to the notification of termination. Consultant may terminate this Letter Agreement only upon 30 calendar days' written notice to the City only in the event of City's failure to perform in accordance with the terms of this Letter Agreement through no fault of Consultant. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant, its officials, officers, employees, subconsultants, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Letter Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant's obligation to indemnify shall survive expiration or termination of this Letter Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents, or volunteers. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements; all emissions limits and permitting requirements imposed by the California Air Resources Board (CARB) or other governmental agencies; and all water quality laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the City. By executing this Letter Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Consultant shall maintain records of its compliance, including its verification of each employee, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant's compliance with the requirements. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, sub -subcontractors and consultants performing any work relating to the Project or this Letter Agreement to make the same verifications and comply with all requirements and restrictions provided herein. Consultant's failure to comply or any material misrepresentations or omissions relating thereto shall be grounds for terminating this Letter Agreement for cause. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Brightview Letter Agreement - RP RW Site Conversion Brightview Landscape Services Inc_ February 21, 2018 Page 4 of 5 Code, and agrees to comply with such provisions before commencing the performance of the Services. Finally, Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment in violation of state or federal law. As provided for in the indemnity obligations of this Letter Agreement, Consultant shall indemnify City against any alleged violations of this paragraph, including, but not limited to, any fines or penalties imposed by any governmental agency. This Letter Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Letter Agreement, the action shall be brought in a state or federal court situated in Orange County, State of California. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et sea. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City. Consultant shall not assign, sublet, or transfer this Letter Agreement or any rights under or interest in this Letter Agreement without the written consent of the City, which may be withheld for any reason. This Letter Agreement may not be modified or altered except in writing signed by both parties. Except to the extent expressly provided for in the termination paragraph, there are no intended third party beneficiaries of any right or obligation of the Parties. This is an integrated Letter Agreement representing the entire understanding of the parties as to those matters contained herein, and supersedes and cancels any prior oral or written understanding or representations with respect to matters covered hereunder. Since the Parties or their agents have participated fully in the preparation of this Letter Agreement, the language of this Letter Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Letter Agreement. Consultant warrants that the individual who has signed this Letter Agreement has the legal power, right and authority to make this Letter Agreement and bind the Consultant hereto. If you agree with the terms of this Letter Agreement, please indicate by signing and dating where indicated below. Brightview Letter Agreement - RP RW Site Conversion 4 Brightview Landscape Services Inc. February 21, 2018 Page 5 of 5 CITY OF SAN JUAN LAPIS RANO? AlBein � (A Nu' marcs iYrorr s. Citv �Ierk Approved As To Form: Cilf Attorney Brightvlew Letter Agreement- RP RW Site Conversion BRIGHTVIEW LANDSCAPE SERVICES INC. Si Ure l Printed Name C ` V1 lir N •--0, Title Date February 21, 2018 BrightView Page 1 of 2 Proposal for Extra Work at City Of San Juan Capistran Property Name City Of San Juan Capistran Contact Mike Marquis Property Address 32400 Paseo Adelanto To City of San Juan Capistrano San Juan Capistrano , CA 92675 Billing Address Attn.- Mark Buberi 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Project Name Rancho Mission Viejo Riding Park Recycled water Conversion Project Description Installation of 9 signs, potable water tags(224) and Hose bib Vacuum breakers to hose bibs (223) Scope of Work QTY .... .................. UoM/Size I ...... ...... I ......... Material/Description I................ Unit Price Total 9.00 EACH .... ,.................. ..I.. ..... .... _ _............. I........... Furnish and install 9 Recycled water signs _ . . $280.00 $2,520.00 223.00 EACH Furnish and install Hose bib Vacuum breaker $30.00 $6,690.00 224.00 EACH Furnish and install Potable water tags $15.00 $3,360.00 35.00 EACH Provide recycled water tags to client ( no installation) $18.36 $642.60 35.00 EACH Provide recycled water valve box identification nameplates to client ( no installation) $18.00 $630.00 4.00 EACH Furnish and install Controller stickers $8.10 $32.40 For Internal use only SO# JOB# Service Line 431100357 130 Total Price THIS IS NOT AN INVOICE This proposal is valid for 60 days unless otherwise approved by BrightView Landscape Services, Inc. 1900 S Lewis St, Anaheim, CA 92805 ph (714) 939-6600 fax $13,875.00 Exhibit A TERMS & CONDITIONS 1. The Contractor shall recognize and perform in mcordance with written terms, written specifications and drawings only, contained or referred to herein All materials shall conform to bid specifications 2. Worn Force: Contractor shall designate a quatar4d represcrnintive wit; experience in landscape maintenancelconslruelion upgrades or when applicable in tree management The weridorce shag be Competent and qualified, and staff be legally authonred to work in the L) S a. License and Permits: Contractor shall maintain a Landscape CaMractor's license. If required by State or local law, and will comply with all other license and permit requirements of the City, State and Federal Governments, as well as all other requirements of law. 4. Takes Contrattor agrees to pay all applicable taxes, including sales tax where applicable on material supplied S. lnsuranco: Contractor agrees (o provide Generat Liability Insurance, Automotive Liability Irssuratnue Worker's Compensation Insurance, arid any other irminanca required by law or Ciiern! (honer, as specified In wetting prior to rpmmonmment of work H riot spocinad. Conbartm will ftrrrrkh Insurance w.lh $1,000,000 limit of liability s. Liability: Contractor shell indemnify the ClIenV wnar and Its agents and employees from and against any third party liabilities that arise (xd of Contractor's wofk to the extent such liabilities are a4udcared to have bean causer! by Contractor's nootirnce or wtlUV misconduct Contractor shop not be liable for any damage that occurs from Acts of God are defined as those caused by windstorm, hall, tire. flood, earthquake, hurricane and freezing, elc Under these CHCHMil inces, Contractor shall have the right to renegotiate the terms and pncad or this agreamenl wilhin sixty 160) days Any illegal. trespass. claims andfor damages resulting from work raqueVed that is riot on property rtwmed by CI,enVOwmor or not under 0ionU0wrn3i management ard control shog be the sale tespenslbitity of the ClienVOwner 7. Subeonkruclors: Contractor reserves the right to hire qualified subcomrarters to perform specialized functions or work requiring specialized egdipmertt S. Additional Services: Any additional work not shown in the above spcofitationsinvolving extra costs WE no msecuted Only upon signed written orders, and will become an eaaa charge over and above the estimate 9. Access. to Jobsisw ClWatrDwlier shall prmdo all ublrees fo perform the Voolk CkenVOftrrei %hall furnish access to all pans of jotlWta where Contractor is to perform work ars required by the Contract or ether funooms mated thereto, during normal ouslnesa hours and other reasonable periods of time Contractor will padorm the work as reasom ably practical altar the owner makes the site availlible for performance of the work 10. Invoicing: ClienUDNr r shall make payment to Contractor within fifteen (15) [lays upon receipt of Ovoico In the event the, schedule for the completion of the work shall require more than thirty (30) days, a progress bill WE be presented by month end and shall be paid within fifteen (15) days upon receipt of invoice 11. Torinin Alien: This VVWk Order may be tem mated by the either party with or without cause, upon seven (7) work days advance written notice Client/Owner wilf he required to pay for all materiels purohasad and work completed to the date of termination and reasonahla charges incurred in demotmgzkig 12. Assignment: The OwneryCgont and the Contractor eeapaetrvnly, bind thernsofveo,. their pallmrs, successors, assignees and lagat reprosentatvo to the other party with respect to all covenants of this Agrearnert Neither the OwnerlClient not the Conlrodof shall assign qr transfer any interest in thea Agreemant without the written consent of kite other provldod„ however, that consent shag not he rearmed to assign ihie Agreement to any company which controls, Is controlled by. cl Is under common comros with Contractor or in connection wlttl assignment 10 air affliale or pursuant to a merger, sale of all or substantiagy ap of its assets or equity securities, consolidation, change of control or corporate reorgamzatron 13. Disclaimer. This proposal was estimated and paced based upon a site visit and visual Inspection from ground level using ordinary means, at or about the time this proposal was prepared The price quoted in ties proposal for the work described, is the result Or that ground level visual inspection and therefore CUP company will riot tie hablde for any addillonal costs or damages for addtlonal week not described helain, or liable for any I.ncideriWaccidents resulting from conditions, that were not ascertainable by said ground level visual inspection by ordinary means at the time said Inspection was performed Contractor cannot be hold resport5ible for unknown or othorwisa hidden defects Any corrective work proposed herein cannot guarantee exact results Professional engineering, architectural, and0ior landscape desigl services ("Design Services") are not included in tilts Agreement and shall not be provided by the Contractor Any design defects in the Contract Documents are the sola responsibility of the Ownor. If the OieritOwmef must engage a lconsed linglneef, architect andlor landscape design professional, arty costs concerning them Design Serycas ale to be paid try pre Cl"reng(hvr.er direc0y to the desigrun involved February 21, 2018 Page 2 of 2 14. Cancellation: Nonce of Cancellation of work must be received in wilting bufore the crew is disoatched to their location or ClientfOwner will be liab'e for a minimum travel charge of $150 00 and billed to ClienVOwner The following sections shall apply where Contractor provides Customer with tree care services: 15. Tree & Stump Removal: Trees removed will be cut as dose to the ground as possible based on condrons to or nextto the bottom of the tree trunk Additional charges will be levied for unseen hazards such as, but not limited to concrete back hood Vuriks, metal rods, ate. If requested mechanical grinding or visible tree stomp will be done ko a defined width and depth below ground level at an addllonal charge to the Cllentl0wrior Oehned backfill and landscape material may be specified. CleenVOwner shelf be responsible far confacitog Undergiound Service Wort to locate underground utility Lines prior to Sian of work Contractor is not responsible damage done to underground utilities such as but not limited to, cables, wires, pipes, and Irrigation parts Contractor will forWr damaged irrigation lines M gra GientlOwner o expense 18. Wafvor of Liability! Requests for crown thinning in excsas of twenty-five percent (25%or work not in accordance with )SA (inletnational Satiety of Arboricullural) standards will require a gghedwvawer of liability Acceptance of this Contract Conlraeter is 41101WIZed to too" the work statedon the faon of this Contact Payment will be 100% due at "me of billing It payment has mot been received by BrightView within fineen (15) days after biting, BrightView shall W urxofnd In a4 costs or cdlecilion, lncludng reasonable attorneys' tore and rt Shad[ be relieved d any Obflgalion to COMnue performance under this of only other Contract with CSentN3vmar. Interest at a per annum rate of 1 5% per month (18% par year), ar the highest rate permitted by taw, may to charged on unpaid balance 30 days anal billing. NOTICE: FAILURE TO MAKE PAYMENT WHEN DUE FOR COMPLETED WORK ON CONSTRUCTION JOBS MAY RESULT IN A MECHANIC'S UEN ON THE TITLE TO YOUR PROPERTY CUsInme- Associate Civil Engineer Mike Marquis February 21, 2018 ctiixrunrr 1!.,, Bright View Landscape Services, Inc "BrightView" Senior Account Manager y,tir:.re TI, Jose Contreras Soto P -*j Vilma February 21, 2018 e o Job#: 431100357 SO It ProposedPdce: $13,875.00