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HomeMy WebLinkAbout07 - Bonita Canyon Sports Park Landscape MaintenanceCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 March 11, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, 949 - 6443055 mharmon@city.newport-beach.ca.us SUBJECT Extension of Agreement with TruGreen Landcare, LLC for Landscape Maintenance of Bonita Canyon Sports Park ISSUES: Should the City extend the agreement with TruGreen Landcare, LLC for the landscape maintenance of Bonita Canyon Sports Park through August 29, 2008? RECOMMENDATION: Approve the agreement with TruGreen Landcare, LLC for continued landscape maintenance of Bonita Canyon Sports Park through August 29, 2008. DISCUSSION: In June of 2003, the City entered into an agreement with TruGreen Landcare LLC for the landscape maintenance of the Bonita Canyon Sports Park (BCSP), which was just opening to the public. The term of the agreement was for one year, but allowed up to four one -year extensions. TruGreen was to be paid $9,728 per month ($116,736 per year) for maintenance. A copy of the agreement is attached (Attachment 1). In May of 2005, due to increases in the cost of fuel, insurance, worker's compensation, and other items, TruGreen notified the City that they intended to exercise their option to terminate the agreement unless the amount of their compensation was increased. The City agreed to increase their compensation by $3,966.80 per month ($47,601.60 per year) and "Amendment No. 1" to the agreement was approved by the City Council (Attachment 2). It should be noted Extension of Agreement with TruGreen Landcare, LLC for Landscape Maintenance of Bonita Canes Sports Park March 11, 2008 Page 2 that, even with this increase, TruGreen's cost was still lower than the second- lowest cost proposal two years before. TruGreen has performed well at BSCP since that time with no further. increase in costs, but the amendment to the agreement did not change the termination date, which remained June 1, 2008. Current Status of Landscaae Agreements This landscape maintenance agreement is one of four such agreements managed by the General Services Department. The landscape contracts are as follows: Areas Vendor Effective Initial Extensions Annual Date Term Allowed in Costs A regiment Bonita Canyon Sports Park TruGreen Landcare June 2003 f Year 4— f Year $164,338 Extensions Parks and City Facilities TruGreen Landcare August 2006 f Year 4— f Year $474,997 Extensions Median and Roadside Merchants Landscape November 2 Years 3 —1 Year $654,035 Areas Services 2007 1 Extensions Newport Coast Landscape Park West Landscape November 2 Years 3 —1 Year $495,278 Maintenance 1 2007 1 Extensions Recently, TruGreen informed staff that they will not seek an extension to the Parks and City Facilities agreement when it comes due in August. Consequently, when faced with. having to seek proposals for similar landscape maintenance services in a short timeframe, staff has decided to combine the BCSP maintenance with the Parks and Facilities maintenance. We plan to solicit proposals for the combined maintenance later this spring, and return to Council with an agreement for approval in July with an effective start date of September 1. To allow this to proceed, we need to extend the expiring BSCP contract for three months. A copy of the letter from TruGreen offering to extend the agreement is attached (Attachment 3), as well as the draft "Amendment No. 2" prepared by the City Attorney's Office (Attachment 4). FUNDING: There are adequate funds in Parks Maintenance Division budget to fund these services this fiscal year, and funds for these services will continue to be budgeted in subsequent fiscal years. Extension of Agreement with TruGreen Landcars, LLC for Landscape Maintenance of Bonita Canyon Sports Park March 11, 2008 Page 3 ENVIRONMENTAL REVIEW: This action requires no environmental review, as it is not a project pursuant to CEQA. Prepared by: Submitted by: Mike Pisani Mark H mon Deputy General Services Director General Services Director Attachments: (1) Contractor Agreement with TruGreen Landcare for Landscape Maintenance of BCSP (2) Amendment No. 1 to Agreement with TruGreen Landcare for Landscape Maintenance of BCSP (3) Letter from TruGreen offering to extend the BSCP Agreement (4) Amendment No. 2 to Agreement with TruGreen Landcare for Landscape Maintenance of BCSP ll CONTRACTOR AGREEMENT �J THIS AGREEMENT, entered into this ist day of June of 2003, by and between the City of Newport Beach, a Municipal Corporation and Charter City ( "City"), and TruGreen LandCare, a General Partnership ("Contractor or TruGreen LandCaW'),'is made with. reference to the following Recitals: RECITALS WHEREAS, In 1995, the City determined it to be in the City's best economic interests to maintain medians and roadsides by private contract. WHEREAS, In 1997, the City Council directed staff to proceed with privatization of park maintenance services upon the completion of Bob Henry Park. WHEREAS, The east and mid park portions of a new park, Bonita Canyon Sports Park, will be completed in May 2003; and a Request for Proposals (RFP) to provide park and landscape maintenance at Bonita.Canyon Sports Park was mailed to ten firms in April 2003. WHEREAS, TruGreen- Cheml-awn Company ( "Contractor") submitted the lowest bid among the four firms which responded to the RFP. WHEREAS, The Contractor desires to enter Into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, The April 2003 RFP includes technical specifications and water management responsibilities by which the Contractor shall execute this agreement, and the RFP is hereto attached and considered to be part of this agreement. WHEREAS, The Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has. committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, the Parties agree as follows:_ TERM The.Term of this Agreement shall be for a period of one (1) year. The term shall commence within ten (10) working days of City Council Approval and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall D: automatically be extended for four (4) additional one (1) year terms (automatic extensions) with the first extension to commence upon the expiration of the initial term, unless the City notifies Contractor in writing at least thirty (30) days before the end of 1 the initial term or any automatic extension, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. .2. CONTRACTOR DUTIES ' Contractor shall perform the services. specifically described in, and in strict compliance with the Scope of Work ("Contract Services ") requirements at the landscape maintenance locations listed in Exhibit C. The Contract Services shall be performed at least as frequently as specified in Exhibit A. City shall have the right to after frequency of maintenance as necessary to ensure highest industry standards of maintenance. - Contract Services relative to the installation of material, the application of substances, or the planting of landscaping shall be in strict conformance with Exhlbit.B. Bid Unit Prices and Costs are contained in Exhibits D and E. All of the Exhibits are considered to be a part of, and are incorporated into, this Agreement. 3• WORKMANSHIP SUPERVISION AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members .of the work force shall be legally documented. B. All Contract Services shall be performed by competent and experienced employees. Irrigation maintenance and repairs shall be monitored by a certified California Landscape Contractors Association Landscape Technician I Irrigation). All pesticide operations, where required, shall be 1 performed by a California State Licensed Pest Control Operator through LJ written recommendation by a Califomia State Licensed Pest Control Advisor. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations regarding pesticide usage: Contractor shall employ or retain, at its sole cost and expense, all Professional and technical personnel (in addition to irrigation and pesticide specialists) necessary to properly perform Contract Services. C. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible 'for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to maparosory personnel shall be deemed. delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. D. All Contractor personnel working at the outlined areas shall be neat in appearance and In uniforms . as approved by the Parks and Tree Maintenance Superintendent when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. E. AN work shall be performed in accordance with the highest landscape maintenance standards. 2 F. AN vehicles and equipment used in conjunction with the work shalt.be in good working order and have appropriate safety guards (mowers, etc.). All vehicles shall bear the identification of the Contractor and dearly post °Serving the City of Newport Beach.' G. Contractor shall provide an Branch Manager to coordinate work with the City Administrator and ensure satisfactory performance of . Contract Services. An area manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. 4. COMPENSAMN TO CONTRACTOR City shall pay Contractor the sum of $116,736.00 per year. Contractor shall submit invoices to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in Section entitled `Notices'. 5. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to,the extent they are limited by statute, rule or regulation and the.express terms of this Agreement. No civil service status or other right of employment shall acme to Contractor or its employees. ..6. _ TYPE AND INSTALLATION OF MATERIAL A. Contractor shall use only the standard materials described in Exhibit B in performing Contract Services. Any deviation from the materials described in Exhibit B shall not be installed unless approved in advance by the City Administrator. B. City reserves the right to purchase material or parts and make same available to Contractor. City shall notify Contractor of its intention to do so seven (7) days prior to Contractors obligation to use City provided parts and /or materials. Contractor shall secure, store, inventory, distribute -and control all materials or parts provided to Contractor by City. Contractor shall make all materials and inventory available to the City upon request. 7. REPAIRIREPLACEMENT A. Contractor shall advise the City Administrator of any damage to City equipment or property immediately upon becoming aware of the damage. B. Contractor shall repair, at its sole cost and expense, any damage to City equipment or property caused by Contractor or it agents; employees, representative or officers. 3 C. Contractor shall repair damaged irrigation pipes, controllers and valves only after the City Administrator has approved a written estimate of the cost of repair. ' D. Contractor shall, at its sole cost and expense, replace all plant materials (including shrubs, ground cover, mulch and bark) which requires replacement due to the failure of Contractor to properly perform the services required by this Agreement or has been damaged by the acts of Contractor or its employees. Contractor shall replace plant materials damaged or destroyed by the acts of others only after the City Administrator approves a written estimate of the costs of replacement including materldeand labor costs. li. F_M MINA -1 ION OF WORK SITES City makes 'no representation regarding the order or condition of any area or . logtion for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 9. HOLD HARMLESS A. Contractor assumes all risk in any way related to the performance of Contract Services. Contractor agrees to indemnify, defend, save and hold harmless City. Its elected and appointed boards and commissions, officers, agents, and employees from and against any loss, damages, liability, claims, costs, expenses-or damages, including, but not limited to, bodily injury, death. personal injury, property damages, attorneys fees and court costs arising from, or in any way related to, the performance of Contract Services required by this Agreement, provided, however. Contractor's obligation in this regard shall not apply in the event of the fraud or willful misconduct by City, its officials, agents, employees or representatives. . B. Contractor shall defend, indemnify and hold harmless City, its City Council, boards and commissions.. officers and employees from and against any and all loss, damages, liability, claims, costs and expenses whatsoever, including reasonable attorneys' fees, which may accrue to any and all persons, or business entities furnishing or supplying work, services, materials, equipment or supplies to Contractor in the performance of services under this Agreement. C. — In the event that Contractor and City are sued by a third party for daages caused or allegedly caused by negligent or other wrongful conduct of Contractor, or by. a dangerous condition of City's property created by Contractor or existing while the property was under the control of Contractor. Contractor shall not be relieved of its obligation to defend, Indemnify. and hold City and its officers, employees and representative (J harmless, by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the City. 4 10. INSURANCE A. In addition to Contractor's obligation to defend,' Indemnify, and hold City C) harmless, Contractor shall obtain and maintain at its own expense during the term of Us Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Insurance Policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to performing any Contract Services. B. Prior to the comi'nencement of work, Contractor shall provide to City certificates of insurance from an insurance company certified to do business in the State of 'Califomia, with original endorsements. At the option of City, Contractor shall provide copies of all policies, providing coverage as required by this Agreement. C. Contractor shall provide the following insurance, with Best's Class A -7 or better carriers: Worker's Compensation and Employers Liability insuring statutory Workers' Compensation limits as required by the California tabor Code and one million dollars ($1,000;000) per accident Employers' Liability; 2. Commercial general liability insurance covering third .party liability risks, including without limitation, contractual liability, in a minimum amount of one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury; and property damage. If the policy contains a general aggregate limit, then the aggregate limit shall not be less than two million dollars ($2,000,000); 3. Commercial auto liability and property Insurance covering all owned and rented vehicles of Contractor coverage Code 1 "any auto" with a minimum amount of two million dollars ($2,000,000.) combined single limit per accidentfor bodily injury and property damage; D. Endorsements. to the policies providing the above insurance shall be obtained by Contractor, adding the following three provisions: 1. Additional Insured: "The City of !Newport Beach and its elected and appointed boards, officers, agents, and employees as additional Insured.' 2. Notice: (� "The policy shall not terminate, nor shall it be canceled or the coverage reduced, until thirty (30) days after written notice is given to City." 5 3. Other Insurance: "Any other insurance maintained by the City of Newport Beach shall be excess and not contributing with the insurance provided by this policy." E. Contractor shall give to City prompt and timely notice of any claim made or suit Instituted arising out of Contractor's performance of this Agreement Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its ptoper protection and performance of Contract Services. F. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor, a waiver of any right, of subrogation which, any such insurer of Contractor may acquire against City by virtue of the payment of any loss under insurance.. 11. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. �.. Contractor may not assign any right or obligation of this Agreement or any interest In this Agreement without the .prior written consent of City. Any, attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 12. RECORDSIREPORTS A. All Contractor's books and other business records, or such part as may used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. .6 C. Contractor shall, at such time and in such form as City may require, proAde reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the City Administrator within ten (10) days after the end of each month. Irrigation programming schedules 'will be submitted monthly. .A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whe&r or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and Invoices in connection with its .work to be performed under this Agreement. ,Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City. during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 93. ADMINISTRATION A. This Agreement will be admin;stered by the General Services Department The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement B. City. shall furnish to Contractor maps, ordinances, data, and other existing . information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to- provide all such materials in a timely manner. 74. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional turfgrass maintenance or landscape maintenance services as requested by the Administrator. The Administrator may give verbal authorization for additional services up to five hundred dollars ($500). - B. .. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the bid unit costs specified 7 in Exhibits D and E. In the event the location is withdrawn for a period of less than a full one .(1) year term, Contractor's compensation shall be reduced on a prorated basis. 15. DISPUTES PERTAINING TO PAYMENT FORWORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager -and his decision shall be final and binding upon Contractor and his sureties. .16. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for any disposal fees or other expenses unless authorized in writing by City Administrator. 17. LABOR AND PERFORMANCE BONDS Contractor shall famish, concurrently with. the effective date of this Agreement, a bond or other instrument satisfactory to the Administrator in an amount equal to fifteen .thousand dollars ($45,000) as security for the Faithful.Performanoe of this Agreement. 18. LABOR A. Contractor shall conform With all applicable provisions of State and Federal law including. applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement. Contractor shall immediately give notice to-City, including all relevant information. 19. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractors obligation not to discriminate shall apply, but not be Limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 20. M Y"S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this projecL 21. . CONFLICTS OF INTEREST F, A. The Contractor or its employees may be subject to the provisions of the Califomia Political Reform Act of 1974 (the `Act°), which (1) requires such persons to disclose financial intbrest. that may *foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act Failure to do so constitutes a material breach and is grounds for termination of tits Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 22. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in willing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid. registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from . Contractor to City shall be addressed to City at: General Services Department City of Newport Beach !� 3300 Newport Boulevard PO Box 1768 . Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: TruGreen LandCare 1150 West Trenton Avenue Orange, CA 92867 23. TERMANATIONIDEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this or authorized by law, terminate this Agreement by giving written j- notice of termination. B: This Agreement may be terminated at anytime, without cause by City or Contractor, upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of eompensation.specified in•the Agreement that Is earned and unpaid prior to the effective date of termination. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for Contract Services if, in the judgment of the City Administrator, the level of maintenance fails below appropriate landscape or hardscape maintenance standards and /or Contractor fails to satisfactorily per"%otm Contract Services. City shall have the right to return funds withheld until the City Administrator determines that Contract Services are performed as well as required by this Agreement. . - 24. COST OF LITIGATION If any legal action is necessary to enforce any provision of this Agreement; or for damages by reason for an alleged breach of any provisions of this Agreement -the parties agree that the court with jurisdiction -over the action may determine and fix reasonable attorneys' fees and expenses to be paid-to the prevailing party. 25. 'COMPLIANCE Contractor represents that it Is familiar, and shall comply, with all state,.federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. M WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the some or a different character. 27. !NTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever, between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged In this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions. hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 10 . ..... . ..... IN WITNESS WHEREOF; the parties have caused this Agreement -to be execLded on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation ATTEST. By: J, - 0M LaVonneYAar_w-eWcjiy -clerk APPROVED t � f FZ.=1shar�Tm"MAbc d 11 TruGreen LandCare By: Tide: 31?tp�- AMENDMENT NO. 1 TO AGREEMENT WITH TRUGREEN LANDCARE, LLC FOR LANDSCAPE MAINTENANCE SERVICES FOR THE BONITA CANYON SPORTS PARK THIS AMENDMENT NO. 1 TO CONTRACTOR AGREEMENT; entered into this — 14h day, of June; 2005, by and between the CITY OF NEWPORT BEACH, a municipal corporation (hereinafter referred to as "City"), and TRUGREEN LANDCARE, L.L.C., a limited liability corporation, whose office Is located at 1150 W. Trenton Avenue, Orange, Califomia, 92867 (hereinafter referred to as *Contractor"), is made with reference to the following: RECITALS A. On June 1, 2003, City and Contractor entered into an Agreement in which Contractor was hired to provide landscape maintenance services at Bonita Canyon Sports Park, located on Bonita Canyon Road and Mesa Drive In the City of Newport Beach (hereinafter referred to as the :Agreement°). B. Total, compensation due Contractor under the Agreement was \ $116,736.00 per year, or $9,728 per month. The term of the Agreement was' for one year, but it was automatically renewable on an annual basis by City for an additional four (4) years. The Agreement was automatically renewed for additional one year periods in June 2004, and 2005. C. The Agreement also provided that Contractor may terminate the Agreement at anytime without cause on thirty (30) days written notice. Specifically, Paragraph 23.13. of the Agreement read as follows: "This Agreement may be terminated at anytime, without cause by City or Contractor, upon thirty (30) days written notice. Upon termination; City shat/ pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination.' D. In May 2005, Contractor notified City that It Intended to exercise its option to terminate the Agreement unless the compensation under the Agreement was increased. Contractor said the Agreement was no longer economically profitable for the Contractor because of the rise in fuel costs, Insurance, workman's compensation, and other expenses. E. City has agreed to increase Contractor's compensation under the Agreement by $3,966.80 per month ($47,601.60 per year), provided that Contractor agrees to provide all of the services outlined in the Agreement for the remainder of the Agreement's term, or until June 1, 2008. F. In addition, Contractor has agreed that the provision allowing it to cancel the Agreement on thirty (30) days written notice shall be deleted. Contractor may only terminate the Agreement in the event of nonpayment by City if the City does not cure said breach as specified in this Amendment. G. To this end, City and Contractor mutually desire to amend the Agreement, as provided in this Amendment No. 1. NOW, THEREFORE, the parties hereto agree as follows: 1, Paragraph 1 of the Agreement shall be revised to read as follows: "The temp of this Agreement shall be for a period of one (1) year. The term shall commence within ten (10) working days of City Council Approval and upon receipt and approval of. all required bonds and insurance. The term of this Agreement shall automatically be extended for four (4) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended .term, unless the City notifies the Contractor In writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Contractor agrees to provide the services outlined In the Agreement for an additional three years, until June 1, 2008, unless City terminates the Agreement earlier, as provided in the Agreement." 2. ' Paragraph 4 of the Agreement shall be revised to read as follows: 013eginning July 1, 2005, the City shall pay Contractor the.sum of Thirteen Thousand Six Hundred Ninety -Four Dollars and Eighty Cents ($13,694.80) Per month for all services to be rendered pursuant to the Agreement and this Amendment No. 1 including, but not limited to, ail reimbursable items and subcontractor fees. Contractor shall submit invoices to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States' mail, first Gass postage pre -paid, and addressed to Contractor as specified in the Section entitled 'Notices.' 3. Paragraph 23 (e) of the Agreement shall be revised to read as follows: "This Agreement may be terminated. at anytime, without cause by City, upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that Is . earned and unpaid . prior to the effective data of termination. The Contractor may only terminate the Agreement In the event of nonpayment by the City. In the event of nonpayment by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (t5) working days to cure the alleged. breach." 4. Except as expressly modified herein, all .other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be In full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: Lavonne Haridess, City Cleric GNU SERS1CAllSharedVACi11i2U6REF�! AMENDMBNr.doc CITY OF NEWPORT BEACH, A Municipal Corporation By Yo fn Heffernan, Mayor fut the City of Newport Beach CONSULTANT: By: ( inanci fficer) Title: rytWAc e-,�o✓S4WIt- Print Name: .5V14 0 144-1"155Z- TRUGREEN LandCare' January 31,2008 Dan Sereno City of Newport Beach Parks and Trees Superintendent General ServicesDepartmeat 3300 Newport Blvd. P.O. Box 1768 Newport Beach,CA 92658 TruGreen LandCare West L.A. Branch 6245 1323 West 130th Street Gardena, California90247 Office: 310364 -1520 Fas 3103234780 California Contractors State License Board #774648 Dear Dan, As per our discussion, this letter serves as notice that TruGreen Landcare would be pleased to extend at current pricing the BCSP Landscape Maintenance Contract until August 29,2008. Sincerely, 6245 Branch Manager AMENDMENT NO. 2 TO AGREEMENT WITH TRUGREEN LANDCARE, L.L.C. FOR LANDSCAPE MAINTENANCE SERVICES FOR THE BONITA CANYON SPORTS PARK THIS AMENDMENT NO. 2 TO CONTRACTOR AGREEMENT, is entered into this _ day of March, 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "CITY'), and TRUGREEN LANDCARE, L.L.0 ( "CONTRACTOR"), a limited liability corporation based in Delaware, whose office is located at 1323 West 13Wh Street, Gardena, California, 90247, and is made with reference to the following: RECITALS: A. On June 1, 2003, City.and Contractor entered into an Agreement in which Contractor was hired to provide landscape maintenance services at Bonita Canyon Sports Park, located on Bonita Canyon Road and Mesa Drive in the City of Newport Beach (hereinafter referred to as the "Agreement "). B. Total compensation . due Contractor under the Agreement was $116,736.00 per year, or $9,728 per month. The term of the Agreement was for one year, but it was automatically renewable on an annual basis by City for an additional four (4) years. The Agreement was automatically renewed for additional one year periods in June 2004 and 2005. C. In May 2005, Contractor notified City that it intended to exercise its option to terminate the Agreement unless the compensation under the Agreement was increased. Contractor said the Agreement was no longer economically profitable for the Contractor because of the rise in fuel costs, insurance, workman's compensation, and other expenses. D. On June 28, 2005, City and Contractor mutually agreed to Amendment No. 1, which increased the Contractor's compensation by $3,966.80 per month (or $47,601.60 per year), provided that Contractor agreed to provide all of the services outlined in.the Agreement for the remainder of the Agreement's term, or until June 1, 2008. E. The purpose of this Amendment No. 2 is to extend the term of the Agreement until August 29, 2008 to give the City time to find a new contractor to provide landscape maintenance of Bonita Canyon Sports Park and other City parks and facilities. F. City and Contractor mutually desire to amend the termination date as provided below, pursuant to this "AMENDMENT NO. 2." NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as,follows: Section 1, Term, of the AGREEMENT is amended to read as follows: "The term of this AGREEMENT shall commence on June 1, 2003 and terminate on August 29, 2008. CONTRACTOR acknowledges and agrees that CONTRACTOR shall have no right to continue service pursuant to the AGREEMENT, or otherwise, beyond the term of this AGREEMENT as amended by Amendment No. 2. CONTRACTOR agrees that upon termination of this AGREEMENT on August 29, 2008, CONTRACTOR will not contest CITY'S right to contract with any other person or entity pursuant to a Request for Proposal Process, or otherwise." 2. Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 on the date first written above. [SIGNATURES ON FOLLOWING PAGE] APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Edward D. Selich, Mayor for the City of Newport Beach CONTRACTOR: TRUGREEN LANDCARE, L.L.C. By: (Corporate Officer) Print Na (Financial Officer) Print Na 1: 1USERSICA- RShared\AWbigRTRUGREEN LANDCARE AMENDMENT N0.2.doc