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08-0701_STEWART & ASSOCIATES_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day 0 008, by and between the City of San Juan Capistrano (hereinafter referred to as the City") and E. Stewart & Associates, Inc. (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide ball field maintenance at the Sports Park and Marco Forster, Cook- Lallovia, and Cook -Cordova fields and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the City 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 2, 2008 and shall terminate, and all services required hereunder shall be completed, no later than June 30, 2009. The City will consider granting in its discretion up to three (3) additional one (1) year option renewals based upon satisfactory performance of Contractor. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed $54,920.00 annually as set forth in Exhibit "B," attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3.1, Consultant 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. 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. Section 4. Independent Contractor. It is agreed that Consultant 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 Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant 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 Consultant is permitted to subcontract any part of this Agreement by City, Consultant 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 Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant 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 Consultant's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; (2) if applicable, 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 Consultant 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. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. 2 Section 9. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Consultant 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 Consultant. Section 11. Copies of Work Product. At the completion of the work, Consultant shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. To the fullest extent permitted by law, Consultant 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 Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant'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 Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, 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 the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant 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. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non - owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of CI activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Not Applicable. 14.6 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. 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant 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 Consultant. 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. 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: be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Public Works Director To Consultant: E. Stewart and Associates, Inc. 1000 Calle Negocio San Clemente, CA 92673 Attention: Edwin Stewart Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 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. [SIGNATURE PAGE FOLLOWS] 9 SCOPE OF WORK Summary of Required Services The City of San Juan Capistrano Department of Public Works (City) is seeking proposals for softball diamond ballfield maintenance at the following locations: Park (Ballfield) No. of No. of Maintenance Preparations Diamonds Active Inactive* On -Call" Season San Juan Sports 2 Park 3 5 days/week times/month As needed Marco Forster 2 Ballfields 2 5 da s/week times/month As needed Cook — La Novia 2 Ballfield 1 5 days/week times/month As needed Cook — Cordova 2 Ballfields 3 5 days/week times/month As needed Active Season is from February 1 at to July 1st. Inactive ballfeld preparations are to take place on the 1st and 15th monthly. **On -Call preparations will be arranged at least 24 hours in advance and can take place at any ballfield listed above. As part of the Agreement, the Offeror will provide the appropriate amount of composition brick dust for each ball field as determined in Section 7.2. Ballfield Maintenance Operational Plan The proposal shall include specific information on all operational aspects of how the ballfields are to be maintained. All maintenance should be in compliance but not limited to the stipulations of the attached Standards and Specifications and attached City of San Juan Capistrano Ballfield Maintenance Procedures Manual. A copy of the Procedures Manual will be kept at the job site at all times. National Pollutant Discharge Elimination System (NPDES) Work performed under this contract shall conform to the permit requirements of the San Diego Regional Water Quality Control Board, the City of San Juan Capistrano's water quality ordinance and Local Implementation Plan (LIP), the Drainage Area Management Plan ("DAMP"), and the Model Maintenance Procedures and must be performed as described within all applicable Model Maintenance Procedures. The Contractor shall fully understand the Model Maintenance Procedures applicable to activities that are being conducted under this Contract prior to conducting them and maintain copies of the Model Maintenance Procedures throughout the Contract duration. Evaluation of activities subject to the City's LIP and DAMP requirements performed under this Contract will be conducted to verify compliance and may be required through Contractor self-evaluation as determined by the City. The model maintenance procedures are included as part of the contract. 10 EXHIBIT A BALLFIELD MAINTENANCE STANDARDS AND SPECIFICATIONS 1.0 Scope of Work: 1.1 Provide infield maintenance for ballfield diamonds per City of San Juan Capistrano Agreement with Contractor. 1.2 Provide a Schedule of Maintenance for the specified work. Contractor to coordinate its maintenance operations with scheduled athletic events. It will be the Contractor's responsibility to meet with the Director of Public Works or his/her authorized representative monthly to develop monthly Maintenance Schedules. 2.0 Ballfield Location/Quantity/Type at each Site: San Juan Sports Park 1. Two (2) ball field diamonds with skinned brick dust base paths, pitcher's mound, warning track, bullpens, coach's boxes. 2. One (1) softball diamond with skinned brick dust infields, pitchers mound and bullpens. 3. 1acre or 43,800 sq. ft. of brick dust. Marco Forster Ballfields 1. Two (2) softball field diamonds with skinned brick dust infield and dugouts. 2. .68 acres or 30,000 sq. ft. of brick dust. Cook -La Novia Ballfield 1. One (1) softball field diamond with decomposed granite infield. 2. .22 acres or 9,700 sq. ft. of brick dust. Cook -Cordova Ballfields 1. Three (3) softball field diamonds with skinned brick dust infields. 2. .83 acres or 36,000 sq. ft. of brick dust. 3.0 Specifications on Brick Dust to be used when maintaining Infields: 3.1 Field in General: When adding field composition mix (brick dust) to any City of San Juan Capistrano ballfield, the specific type of material to be used is: Corona Clay Products "Angel Mix' (Corona Clay Products, Corona, CA It 909.277.2667). The exception is the Cook Lallovia Ballfield which has a decomposed granite infield. (This D.G. can be found at Gail Materials, Corona, CA 909.279 .1095) 3.2 Pitcher's Mound/Home Plate: When adding "Angel Mix' or a higher clay composition material to any pitchers mound/home plate area, the specific type of material to be used will be recommended by the City of San Juan Capistrano. 4.0 Work to be Completed "DAILY": 4.1 Retain smooth and level playing surface, using the following daily procedure. Note: Remove bases before beginning any work on infield and re -install after all work on infield is completed. 4.2 Contractor will be required to keep a neat trimmed edge between any turf and brick dust border. Edged and trimmed weekly (February — October) bi-weekly (November — January). 5.0 Work to be Completed "AS NEEDED": 5.1 Replace base anchors as needed (to include anchor ground stake mounted in a square concrete footing). City of San Juan Capistrano uses the BOLCO and/or HOLLYWOOD base anchoring systems. Install base anchors into ground per manufacturer's standards (top of stake should be approximately 2" below the surface grade) so that the base sits level and flush against the surface on all sides. 5.2 Remove, level and re -install home plates at all fields and the pitching rubber to insure level playing surface. Note: City of San Juan Capistrano shall provide all new home plates and pitching rubbers when needed. 6.0 Work to be Completed "MONTHLY": 6.1 To maintain levelness of high use areas, heavy drag or nail drag to scarify and move more substantial amounts of soil to low spots (running paths, sliding zones, shortstop/15t base areas). Heavy water and allow to settle in before play on field. Note: Due to heavy watering and its need to settle before play, staff will provide quarterly schedule of monthly heavy drag dates to contractor. 12 7.0 Work to be Completed "ANNUALLY": 7.1 Between December 15t and December 30th of each year, major renovation is to be done on all fields. A "Turf Tearer" shall be used to scarify brick dust infields and a laser grade machine used to scrape all high and fill all low spots. 7.2 In addition, 150 tons of new field composition mix (brick dust) shall be installed at the contractor's expense to infields as directed by the City. 8.0 Wet/Rainy Weather Procedure: 8.1 On the next scheduled working day after a rainfall, the following procedure, in the order listed, shall be adhered to assure that all ball diamond infields are returned to a safe and playable condition. 8.2 Remove all standing water from low spots either by skimming off excess water and spreading it out or using a pump/sopper system. 8.3 Rake out wet areas before applying dry material. 8.4 Apply dry material to all wet areas and rake out. 9.0 General Contract Provisions: 9.1 Contractor shall be fined $125 per day for any work outlined in the contract which is not completed. 9.2 Contractor shall provide and is responsible for all equipment necessary to carry out the work outlined in the contract. There will be no available storage for equipment. Contractor will be responsible for bringing in and then removing all equipment necessary to carry out the work outlined in the contract. 9.3 Remove all litter, broken glass and hazardous debris from infield, dugout and bleacher areas on each day of service. 9.4 Field in General: Before dragging, shovel and rake loose surface materials into low spots/worn areas on running paths, sliding zones, and any other low spots/worn areas appearing on the field. 9.5 Home Plate and Pitchers Mound: Before dragging, hand water home plate and pitchers mound areas and rake loose material back into low spots. Pack with tamper and gently rake tamped surface. 9.6 Hose or sweep all dug -outs clean on each day of service. 13 9.7 Drag infield using a 'light drag" (steel, waffle type drag mat.). Circular or figure eight drag patterns may be used. Alternate drag patterns or reverse direction of drag patterns daily to avoid ruts and high/low areas. Empty drag and rake out material on infield and in different places each time to avoid soil build-up in certain areas. Note: When dragging, to avoid soil build-up (lip) between turf and skinned areas, leave a twelve -inch (12" gap between these areas when dragging. The 12" gap also applies to all backstops and chain link fence areas. Hand rake this 12" area and sweep/high pressure water turf edge if necessary to prevent a lip situation from occurring. Also, hand rake all base paths on combination turf/brick dust infields. If in the determination of staff, an unsafe lip situation occurs in any turf/brick dust border area (infield to brick dust, base paths or brick dust to outfield), contractor will be required to remove or level the soil build-up with a rototiller or sod cutter and re-establish the infield boundaries with a string line or suitable method and re -sod up to the border to remedy the situation at contractors expense. 9.8 After dragging/raking, re -water home plate, pitchers mound, running paths and sliding zones to settle dust and gently pack/stabilize these areas. 14 PROPOSAL BALL FIELD MAINTENANCE From: E.STEWART AND ASSOCIATES CONTRACTOR To the Honorable City Council City of San Juan Capistrano Gentlemen: The undersigned, as proposer, declares that he has carefully examined the location of the proposed work as described, examined the Specifications and General Provisions, read the Proposal Instructions, and is familiar with all proposal requirements, and hereby proposes and agrees, if the proposal is accepted, to complete said contract in accordance with the Contract Documents for the following: Active Season preparations to take place 5 tines per week on all fields. February 1 st through July 1st. Inactive bafifiekb preparations are to take place on the 1st and 15th monthly. —On -Call preparations will be arranged at least 24 hours in advance and can take place at any ballfield fisted above. Total Yearly Cost (Active + Inactive X 12, do not include On Call) FIFTY FOUR THOUSAND NINE HUNDRED TWENTY (in writing) AND NO CENTS. • Total Contract Cost (3 Year Contract, On Call not included) (in writing) $54 '920-00 (in figures) (in figures) EXHIBIT B Monthly Park (Ballfield) No. of Diamonds Cost for Maintenance Preparabons Active Season Inactive* On -Call** San Juan Sports Park 3 $1,675.00 $1,369.00 $181.00 Marco Forster Ballfields 2 $1,215.00 $ 913.00 $121.00 Cook — La Novia Ballfield 1 609.00 $ 499.00 $ 61.00 Cook — Cordova Ballfields 3 $1 675.00 $1,369.00 1 $181.00 Total Monthly Cost 9 $5,174.00 $4,150.00 Active Season preparations to take place 5 tines per week on all fields. February 1 st through July 1st. Inactive bafifiekb preparations are to take place on the 1st and 15th monthly. —On -Call preparations will be arranged at least 24 hours in advance and can take place at any ballfield fisted above. Total Yearly Cost (Active + Inactive X 12, do not include On Call) FIFTY FOUR THOUSAND NINE HUNDRED TWENTY (in writing) AND NO CENTS. • Total Contract Cost (3 Year Contract, On Call not included) (in writing) $54 '920-00 (in figures) (in figures) EXHIBIT B IN WITNESS WHEREOF, the parties hereto have executed this Agreement. LIM CAPISTRANO Joh Soto, -Mayor E. STCWART AND ASSOCIATES, INC. r APPROVED AS TO FORM: 32400 PASEO ADEIANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx www. sand uancapistrano. org TRANSMITTAL TO Edwin Stewart E. Stewart and Associates 1000 Calle Negocio San Clemente, CA 92673 DATE: July 3, 2008 • /,I�MEMBERS OF THE CITY COUNCIL SAM ALLEVATO L,/yy uanamo THOMAS W. HRIBAR ' CST I IV 1961 MARK NIELSEN 1776 JOE SOTO • _ • DR. LONDRES USO FROM: Maria Morris, Deputy City Clerk RE: Personal Services Agreement — Ball Field Maintenance (Sports Park/Marco Forster/Cook-La Novia/Cook-Cordova Fields Thank you for maintaining documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please me at (949)443-6309. If you have questions concerning the agreement, please contact Jill Thomas, Senior Management Analyst (949) 443-6362. An original agreement is enclosed for your records. Cc: Jill Thomas, Senior Management Analyst San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recycled paper 7/1/2008 AGENDA REPORT D5 TO: Dave Adams, City Manager �` FROM: Nasser Abbaszadeh, Public Works Director SUBJECT: Consideration of an Agreement for Ball Field Maintenance Services (E. Stewart and Associates, Inc.) RECOMMENDATION: By motion, approve the Personal Services Agreement with E. Stewart and Associates, Inc. for a one year period, commencing July 2, 2008 and ending on June 30, 2009, in the amount of $54,920.00. SITUATION: On July 1, 2006, the City entered into a three-year contract with TruGreen LandCare Company for ball field maintenance for the Sports Park, Marco Forster, Cook -La Novia, and Cook -Cordova. On May 9, 2008, City staff was notified by TruGreen LandCare Company that they would be unable to perform the contracted service for the contract amount of $44,982 for the remaining year of their contract. Section 15 of the aforementioned contract with the City (Attachment 3) allowed the contractor and/or the City to terminate the agreement by giving thirty (30) days advance notice of termination to the other party. A new proposal by TruGreen LandCare was presented for $89,964 annually. If not accepted, their services would be discontinued on June 30, 2008. Due to the significant increase proposed by TruGreen to continue their services (a 100% increase), staff pursued other, more cost effective options for ball field maintenance. In order to continue maintaining the ball fields throughout the critical baseball season (in session currently) in summer and spring, staff requested a proposal from E. Stewart and Associates, Inc. to maintain the ball fields for another year, thereby, allowing staff adequate time to seek out more cost effective bids. E. Stewart and Associates, Inc. is well qualified to undertake this contract. The firm currently is under contract with the City of San Clemente for their ball field maintenance. The bid from E. Stewart and Associates, Inc. for the same service and scope of work as TruGreen, for a one year period, is $54,920.00. Agenda Report Page 2 July 1, 2008 Summary and Recommendation: Staff is recommending the City enter into an agreement with E. Stewart and Associates for a one year contract in the amount of $54,920. Staff will rebid the ball field maintenance services in the coming months. . COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: N/A FINANCIAL CONSIDERATIONS: While the proposal from E. Stewart and Associates, Inc. is $9,938 higher than the existing contract with TruGreen LandCare, it is significantly less than the proposed increase ($89,964) requested by TruGreen. There is $45,000 budgeted in the 08/09 budget to cover the current contract. Staff had identified additional funding ($10,000) to support the increased cost of this agreement, the result of potential savings in the recent bids received for custodial maintenance contract (actual costs versus budgeted numbers). When the custodial contract returns to the City Council for action, appropriate adjustments to the contract will be recommended for full funding of custodial services. Staff will request budget transfers from the following accounts to cover the increase: Amount of Dept Description Transfer 01-62416-4445 Railroad Platform Maint 2,500 01-62414-4450 Park Restroom Maint. 5,000 01-624164456 Sports Park Area 2,500 NOTIFICATION: E. Stewart and Associates, Inc. Agenda Report Page 3 RECOMMENDATION: July 1, 2008 By motion, approve the Personal Services Agreement with E. Stewart and Associates, Inc. for a one year period, commencing July 2, 2008 and ending on June 30, 2009, in the amount of $54,920.00. Respectfully submitted, Nasser Abbaszadeh, P.E. Public Works Director Attachment(s) 1. Personal Services Agreement 2. TruGreen Letter dated 5/9/08 3. TruGreen Personal Services Agreement Prepared by: Jill Thomas Senior Management Analyst PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this_ day of , 2008, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and E. Stewart & Associates, Inc. (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to provide ball field maintenance at the Sports Park and Marco Forster, Cook- Lallovia, and Cook -Cordova fields, and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the City 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 2, 2008 and shall terminate, and all services required hereunder shall be completed, no later than June 30, 2009. The City will consider granting in its discretion up to three (3) additional one (1) year option renewals based upon satisfactory performance of Contractor. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall not exceed $54,920.00 annually as set forth in Exhibit "B," attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3.1, Consultant 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. Attachment 1 3.3 Records of Expenses. Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City.. Section 4. Independent Contractor. It is agreed that Consultant 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 Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Consultant 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 Consultant is permitted to subcontract any part of this Agreement by City, Consultant 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 Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Consultant 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 Consultant's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Consultant warrants that:. (1) it has investigated the work to be performed; (2) if applicable, 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 Consultant 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. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. 2 Section 9. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Consultant 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 Consultant. Section 11. Copies of Work Product. At the completion of the work, Consultant shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. To the fullest extent permitted by law, Consultant 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 Consultant, Consultant's agents, officers, employees, subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant'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 3 insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, 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 the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant 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. 14.1 Comprehensive General Liability., Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit, 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non - owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 14.3 Worker's Compensation. If Consultant intends to employ employees to perform services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insureds as respects each of the following: Liability arising out of Iv' activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Not Applicable. 14.6 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. 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant 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 Consultant. 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. 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: 5 be used for delivery of service of process: To City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Public Works Director To Consultant: E. Stewart and Associates, Inc. 1000 Calle Negocio San Clemente, CA 92673 Attention: Edwin Stewart Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 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. [SIGNATURE PAGE FOLLOWS] R IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: IAIII I I.�.�Ll�� • ..WE mt, CITY OF SAN JUAN CAPISTRANO 0 Dave Adams, City Manager E. STEWART AND ASSOCIATES, INC. B"') A eEdwin Stewart 7 SCOPE OF WORK Summary of Required Services The City of San Juan Capistrano Department of Public Works (City) is seeking proposals for softball diamond ballfield maintenance at the following locations: Park (Ballfield) No. of No. of Maintenance Preparations Diamonds Active Inactive* On -Call** Season San Juan Sports 2 Park 3 5 days/week times/month As needed Marco Forster 2 Ballfields 2 5 days/week times/month As needed Cook — La Novia 2 Ballfield 1 5 days/week times/month As needed Cook — Cordova 2 Ballfields 3 5 days/week times/month As needed Active Season is from February 1st to July 1 st. *Inactive ballfield preparations are to take place on the 1st and 15th monthly. **On -Call preparations will be arranged at least 24 hours in advance and can take place at any balfeld listed above. As part of the Agreement, the Offeror will provide the appropriate amount of composition brick dust for each ball field as determined in Section 7.2. Ballfield Maintenance Operational Plan The proposal shall include specific information on all operational aspects of how the ballfields are to be maintained. All maintenance should be in compliance but not limited to the stipulations of the attached Standards and Specifications and attached City of San Juan Capistrano Ballfield Maintenance Procedures Manual. A copy of the Procedures Manual will be kept at the job site at all times. National Pollutant Discharge Elimination System (NPDES) Work performed under this contract shall conform to the permit requirements of the San Diego Regional Water Quality Control Board, the City of San Juan Capistrano's water quality ordinance and Local Implementation Plan (LIP), the Drainage Area Management Plan ("DAMP"), and the Model Maintenance Procedures and must be performed as described within all applicable Model Maintenance Procedures. The Contractor shall fully understand the Model Maintenance Procedures applicable to activities that are being conducted under this Contract prior to conducting them and maintain copies of the Model Maintenance Procedures throughout the Contract duration. Evaluation of activities subject to the City's LIP and DAMP requirements performed under this Contract will be conducted to verify compliance and may be required through Contractor self-evaluation as determined by the City. The model maintenance procedures are included as part of the contract. 10 EXHIBIT A BALLFIELD MAINTENANCE STANDARDS AND SPECIFICATIONS 1.0 Scope of Work: 1.1 Provide infield maintenance for ballfield diamonds per City of San Juan Capistrano Agreement with Contractor. 1.2 Provide a Schedule of Maintenance for the specified work. Contractor to coordinate its maintenance operations with scheduled athletic events. It will be the Contractor's responsibility to meet with the Director of Public Works or his/her authorized representative monthly to develop monthly Maintenance Schedules. 2.0 Ballfield Location/Quantity/Type at each Site: San Juan Sports Park 1. Two (2) ball field diamonds with skinned brick dust base paths, pitcher's mound, warning track, bullpens, coach's boxes. 2. One (1) softball diamond with skinned brick dust infields, pitchers mound and bullpens. 3. 1acre or 43,800 sq. ft. of brick dust. Marco Forster Ballfields 1. Two (2) softball field diamonds with skinned brick dust infield and dugouts. 2. .68 acres or 30,000 sq. ft. of brick dust. Cook -La Novia Ballfield 1. One (1) softball field diamond with decomposed granite infield. 2. .22 acres or 9,700 sq. ft. of brick dust. Cook -Cordova Ballfields 1. Three (3) softball field diamonds with skinned brick dust infields. 2. .83 acres or 36,000 sq. ft. of brick dust. 3.0 Specifications on Brick Dust to be used when maintaining Infields: 3.1 Field in General: When adding field composition mix (brick dust) to any City of San Juan Capistrano ballfield, the specific type of material to be used is: Corona Clay Products "Angel Mix' (Corona Clay Products, Corona, CA 909.277.2667). The exception is the Cook Lallovia Ballfield which has a decomposed granite infield. (This D.G. can be found at Gail Materials, Corona, CA 909.279 .1095) 3.2 Pitcher's Mound/Home Plate: When adding "Angel Mix' or a higher clay composition material to any pitchers mound/home plate area, the specific type of material to be used will be recommended by the City of San Juan Capistrano. 4.0 Work to be Completed "DAILY": 4.1 Retain smooth and level playing surface, using the following daily procedure. Note: Remove bases before beginning any work on infield and re -install after all work on infield is completed. 4.2 Contractor will be required to keep a neat trimmed edge between any turf and brick dust border. Edged and trimmed weekly (February — October) bi-weekly (November — January). 5.0 Work to be Completed "AS NEEDED": 5.1 Replace base anchors as needed (to include anchor ground stake mounted in a square concrete footing). City of San Juan Capistrano uses the BOLCO and/or HOLLYWOOD base anchoring systems. Install base anchors into ground per manufacturer's standards (top of stake should be approximately 2" below the surface grade) so that the base sits level and flush against the surface on all sides. 5.2 Remove, level and re -install home plates at all fields and the pitching rubber to insure level playing surface. Note: City of San Juan Capistrano shall provide all new home plates and pitching rubbers when needed. 6.0 Work to be Completed "MONTHLY": 6.1 To maintain levelness of high use areas, heavy drag or nail drag to scarify and move more substantial amounts of soil to low spots (running paths, sliding zones, shortstop/15t base areas). Heavy water and allow to settle in before play on field. Note: Due to heavy watering and its need to settle before play, staff will provide quarterly schedule of monthly heavy drag dates to contractor. 12 7.0 Work to be Completed "ANNUALLY": 7.1 Between December 15` and December 30th of each year, major renovation is to be done on all fields. A "Turf Tearer" shall be used to scarify brick dust infields and a laser grade machine used to scrape all high and fill all low spots. 7.2 In addition, 150 tons of new field composition mix (brick dust) shall be installed at the contractor's expense to infields as directed by the City. 8.0 Wet/Rainy Weather Procedure: 8.1 On the next scheduled working day after a rainfall, the following procedure, in the order listed, shall be adhered to assure that all ball diamond infields are returned to a safe and playable condition. 8.2 Remove all standing water from low spots either by skimming off excess water and spreading it out or using a pump/sopper system. 8.3 Rake out wet areas before applying dry material. 8.4 Apply dry material to all wet areas and rake out. 9.0 General Contract Provisions: 9.1 Contractor shall be fined $125 per day for any work outlined in the contract which is not completed. 9.2 Contractor shall provide and is responsible for all equipment necessary to carry out the work outlined in the contract. There will be no available storage for equipment. Contractor will be responsible for bringing in and then removing all equipment necessary to carry out the work outlined in the contract. 9.3 Remove all litter, broken glass and hazardous debris from infield, dugout and bleacher areas on each day of service. 9.4 Field in General: Before dragging, shovel and rake loose surface materials into low spots/worn areas on running paths, sliding zones, and any other low spotstworn areas appearing on the field. 9.5 Home Plate and Pitchers Mound: Before dragging, hand water home plate and pitchers mound areas and rake loose material back into low spots. Pack with tamper and gently rake tamped surface. 9.6 Hose or sweep all dug -outs clean on each day of service. 13 9.7 Drag infield using a 'light drag" (steel, waffle type drag mat.). Circular or figure eight drag patterns may be used. Alternate drag patterns or reverse direction of drag patterns daily to avoid ruts and high/low areas. Empty drag and rake out material on infield and in different places each time to avoid soil build-up in certain areas. Note: When dragging, to avoid soil build-up (lip) between turf and skinned areas, leave a twelve -inch (12" gap between these areas when dragging. The 12" gap also applies to all backstops and chain link fence areas. Hand rake this 12" area and sweep/high pressure water turf edge if necessary to prevent a lip situation from occurring. Also, hand rake all base paths on combination turf/brick dust infields. If in the determination of staff, an unsafe lip situation occurs in any turf/brick dust border area (infield to brick dust, base paths or brick dust to outfield), contractor will be required to remove or level the soil build-up with a rototiller or sod cutter and re-establish the infield boundaries with a string line or suitable method and re -sod up to the border to remedy the situation at contractors expense. 9.8 After dragging/raking, re -water home plate, pitchers mound, running paths and sliding zones to settle dust and gently pack/stabilize these areas. 14 PROPOSAL BALL FIELD MAINTENANCE From: E.STEWART AND ASSOCIATES CONTRACTOR To the Honorable City Council City of San Juan Capistrano Gentlemen: The undersigned, as proposer, declares that he has carefully examined the location of the proposed work as described, examined the Specifications and General Provisions, read the Proposal Instructions, and is familiar with all proposal requirements, and hereby proposes and agrees, if the proposal is accepted, to complete said contract in accordance with the Contract Documents for the following: Active Season preparations to take place 5 W per week on all fields. February 1st through July 1st Inactive ballfiekt preparations are to take place on the 1st and 15th monthly. "On -Call preparations will be arranged at least 24 hours in advance and can take place at arty ballfield listed above. Total Yearly Cost (Active + Inactive X 12, do not include On Call) FIFTY FOUR THOUSAND NINE HUNDRED TWENTY (n writing) AND NO CENTS. Total Contract Cost (3 Year Contract, On Call not included) (in writing) $54'920.00 (in figures) (in figures) EXHIBIT B Monthly Park (Ballfield) No. of Diamonds . Cost for Maintenance Preparations Active Season Inactive* On -Call** San Juan Sports Park 3 $1,675.00 $1,369.00 $181.00 Marco Forster Ballfields 2 $1,215.00 $ 913.00 $121.00 Cook — La Novia Ballfield 1 609.00 $ 499.00 $ 61.00 Cook — Cordova Ballfields 3 $1 675.00 $1,369.00 $181.00 Total Monthly Cost 9 $5,174.00 $4,150.00 Active Season preparations to take place 5 W per week on all fields. February 1st through July 1st Inactive ballfiekt preparations are to take place on the 1st and 15th monthly. "On -Call preparations will be arranged at least 24 hours in advance and can take place at arty ballfield listed above. Total Yearly Cost (Active + Inactive X 12, do not include On Call) FIFTY FOUR THOUSAND NINE HUNDRED TWENTY (n writing) AND NO CENTS. Total Contract Cost (3 Year Contract, On Call not included) (in writing) $54'920.00 (in figures) (in figures) EXHIBIT B 05/092008 03:50 3i0�,,4:00 TRUGREEr, .,RE I ..-t 82/02 TRUGREEN LandCare City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano,CA 92675 Atm: Public Works Director Subject. Ball Field Maintenance Contract Cindy Russell. Gardena tiiAr( h 1123 Wrrf I.iOth Sff t GAxOnk (.A d0'd47 Office 31e ;:N 1008 F'ax 310,123 V80 31v-35LI-1524 It has been our pleasure to service the `Ball Field Mamterna -,ce Contract' since luh 1 2006. The contract will be up for renewal on June 30"', 26CS per the oripina: specifications and contract rate --$44,982.00 annually We have evaluated the costs of performing the maintenance contract and found the nce;i to adjusted the aforementioned contract rate to account foi numerous market canah.c., upwardly trending since the onset of the contract. Effective July 1', 2008, the new annual rate will be $89,964 00. please confirm receipt of this notification and your consent or dissent to this change I. bless notified to wi-tCnp of your consent and subsequent approval of this change and renewal. our scr•ice w1;1 discontinue on June 30i1'. 2008. We thank you for your business and look forward to future, success I am availab.e at your behest to answer any concerns and or questions. Thank you. Sincerely, Ser o eman ez Bra ch anag Tru en Landc e Branch 6245 1323 West 130th Street Gardena,CA 90247 ATTACHMENT PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this Ila Y ` day of " v"` 2006, by and between the City of San Juan Capistrano (hereinafter referred as the "City") and TruGreen Landcare, (hereinafter referred to as "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor regarding the City's proposal to provide ball field maintenance services within the City; 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. Scone of Work. 116 The scope of work to be performed by Contractor shall consist of those tasks as set forth in the City's request for proposals for ball field maintenance, dated March 2006, incorporated herein by reference. Contractor warrants that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. The San Diego Regional Water Quality Control Board (RWQCB) has issued a permit which governs stormwater and non-stormwater discharges resulting from areas owned and operated by the County of Orange, Orange County Flood Control District and incorporated cities of Orange County (collectively referred to as Permittees). The RWQCB Permits is a National Pollutant Discharge Elimination System (NPDES) Permit No. R9-2002-0001, respectively. Copy of the RWQCB Permit is available for review. In order to comply with the Permit requirements, the Permittees have developed a Drainage Area Management Plan (DAMP) which contains Model Maintenance Procedures with Best Management Practices (BMPs) that parties conducting the municipal activities must adhere to. These Model Maintenance Procedures apply to any party conducting municipal activities and contain pollution prevention and source control techniques to minimize the impact of those activities upon dry -weather urban runoff, stormwater runoff, and receiving water quality. ATTACHMENT Work performed under this Agreement shall conform to the Permit requirements, the DAMP, and the Model Maintenance Procedures and must be performed as described within all applicable Model Maintenance Procedures. The Contractor shall fully understand the Model Maintenance Procedures applicable to activities that are being conducted under this Agreement prior to conducting them and maintain copies of the Model Maintenance Procedures throughout the Agreement duration. The applicable Model Maintenance Procedures are included as Exhibit "B" of this Agreement. Evaluation of activities subject to DAMP requirements performed under this Agreement will be conducted to verify compliance with DAMP requirements and may be required through Contractor self -evacuation as determined by the City. Section 2. Term. This Agreement shall commence as of July 1, 2006, and services required hereunder shall continue through June 30, 2009. City will consider granting, in its discretion, up to three (3) additional one (1) year option renewals based upon satisfactory performance of Contractor. Section 3. Compensation. 3.1 Amount. 13 Total compensation for the scope of services for this Project shall not exceed forty-four thousand nine hundred eighty-two dollars ($44,982), as set forth in Exhibit "A," Contractor's proposal dated April 17, 2006, attached and incorporated herein by reference. 3.2 Rate Schedule. The services shall be billed to the City at the hourly rate set forth in Exhibit "A," attached and incorporated herein by reference. Included within the compensation are all the Contractor's ordinary office and overhead expenses incurred by it, its agents and employees, including meetings with the City representatives and incidental costs to perform the stipulated services. Submittals shall be in accordance with Contractor's proposal. 3.3 Method of Payment. Contractor shall submit monthly invoices based on total services, which have been satisfactorily completed and specifying a percentage of projected completion for approval by the City. The City will pay monthly progress payments based on approved invoices in accordance with this Section. 2 For extra work not part of this Agreement, a written authorization from City is required prior to Contractor undertaking any extra work. 3.4 Records of Expenses. Contractor shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to City. 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. 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. Familiaritv with Work and Construction Site. By executing this Agreement, Contractor warrants that: (1) it has investigated the work to be performed; (2) it has investigated the proposed construction site, including the location of all utilities, and is aware of all conditions there; and (3) it 3 understands the facilities, difficulties and restrictions of the work 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 City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 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. Copies of Work Product. At the completion of the contract period, Contractor shall have delivered to City at least one (1) copy of any final reports and architectural drawings containing Contractor's findings, conclusions, and recommendations with any support documentation. All reports submitted to the City shall be in reproducible format. All services to be rendered hereunder shall be subject to the direction and approval of the City. Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Contractor in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Contractor agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Contractor's 4 professional services. Section 13. Indemnity. Contractor agrees to protect, defend and hold harmless City, its elected and appointed officials 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 damage to property or interference with use of property and for errors and omissions committed by Contractor arising out of or in connection with the work, operation or activities of Contractor, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 14. Insurance. Insurance required herein shall be valid for a minimum of one year, or term of contract, whichever is longer, and it 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. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non - owned vehicles in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; 5 $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period 14.3 Worker's Compensation. If Contractor intends to employ employees to perform services under this Agreement, Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Contractor shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement to the Contractor's general liability and umbrella liability policies to the City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 14.5 Errors and Omissions Coverage Throughout the term of this Agreement, Contractor shall maintain Errors and Omissions Coverage (professional liability coverage) in an amount of not less than One Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Contractor shall submit an insurance certificate to the City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 14.6 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. 14.7 Terms of Compensation. Contractor shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Contractor shalt 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. 0 City and Contractor shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to the other party In addition, this Agreement may be terminated 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. 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.: Public Works Director To Contractor: TruGreen Landcare 1150 West Trenton Avenue Orange, CA 92867 Attn.: Joel Gay Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 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. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPIST NO B avid M. S er lin, Mayor CONTRACTOR an APPROVED AS TO FORM: John R. Shaw, Cit Atto y 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www santuancapistrano. org Ah MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MPOTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAMALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO The City Council of San Juan Capistrano will meet at 6:30 p.m. on July 1, 2008, in the City Council Chamber in City Hall, to consider: "Consideration of an Agreement for Ball Field Maintenance Services (E. Stewart and Associates, Inc.)" — Item No. D5. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Board and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at City Hall by 5:00 p.m. on Monday, June 30, 2008 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow 'Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Jill Thomas, Senior Management Analyst. You may contact that staff member at (949) 443-6362 with any questions. The Agenda, including agenda reports, is available to you on our web site: www.saneuancal)istrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: citvclerk aesanivancapistrano.om. Meg Monahan, CMC City Clerk cc: E. Stewart & Associates; Jill Thomas, Senior Management Analyst San Juan Capistrano: Preserving the Past to Enhance the Future ONprinted on 100°u recycled paper