CITY COUNCIL AGENDA ITEM NO.

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1 CITY COUNCIL AGENDA ITEM NO. Meeting Date: December 3, 2013 Subject/Title: Prepared by: A Resolution approving and authorizing the City Manager or designee to execute an Assignment and Assumption Agreement transferring landscape maintenance services from East Bay Construction Company (EBCC) to Marina Landscape, Inc. Roger Stromgren, Park/Maintenance Manager Submitted by: Craig D. Bronzan, Director of Parks and Recreation RECOMMENDATION Approve a Resolution approving and authorizing the City Manager or designee to execute an Assignment and Assumption Agreement transferring landscape maintenance services from East Bay Construction Company (EBCC) to Marina Landscape, Inc. PREVIOUS ACTION On December 9, 2008, by Resolution , City Council awarded a Contract for Landscape Maintenance Services to East Bay Construction Company. On January 12, 2010, by Resolution , City Council approved and authorized the City Manager or City Attorney as appropriate; to execute Purchase Orders, Change Orders and/or Agreements, after approval as to form by the City Attorney, with specified vendors for the updated not-to-exceed dollar amounts listed on the attached Exhibit A. Included was Amendment No. 1 to the Contract for Landscape Maintenance Services with East Bay Construction Company to alter the Contract s Scope of Work to include additional work to replace missing and/or failed plant material. On November 9, 2010, by Resolution , City Council approved and authorized the City Manager or designee to execute Amendment No. 2 to the Contract for Landscape Maintenance Services with East Bay Construction Company extending the term for two additional years and increasing the contract by $3,091, from a total contract amount of $2,249, to $5,340, plus a contingency amount of $483, for a total not to exceed contract amount of $5,824, for citywide Lighting and Landscape Districts (LLDs) through December 31, On March 8, 2011, by Resolution , City Council approved and authorized the City Manager or designee to execute Amendment No. 3 altering the Contract to remove the requirement of Contractor to provide a Faithful Performance Bond that was included as Exhibit F and further amended the Contract to require Contractor to perform additional work at the direction of the Director of Parks and Recreation in an amount equivalent to Contractor s premium paid for their Faithful Performance Bond for calendar year 2010, not to exceed $13,982. Agenda Item A.2 - Page 1 of 7

2 On June 10, 2011, the Parties executed Amendment No. 4 altering the Contract to increase the contract amount on July 1, 2011 for fiscal year 2011/12 by the Consumer Price Index (CPI) not to exceed 3% and revising the scope of work and fee schedule. On July 23, 2012, the Parties executed Amendment No. 5 altering the EBCC s scope of work. On October 9, 2012, the parties executed Amendment No. 6 extending the term of the contract for one year and amending the scope of work, from January 1, 2013, to December 31, A second year extension was to be based on performance during On October 8, 2013, by Resolution , City Council approved and authorized the City Manager or designee to execute Amendment No. 7 extending the term of the contract for one year and revising the scope of work. BACKGROUND The City currently contracts for the following areas of landscape maintenance services: Parks Lighting and Landscape Districts (LLDs) Right-of-Ways/City Owned Property Trees Weed Abatement On September 29, 2008 Parks and Recreation Department staff issued a Request for Proposal (RFP) for Landscape Maintenance Services for Parks, Street Medians, Open Space, and Rightof-Ways. Contractors were offered the opportunity to submit proposals for any portion, or the entire amount of the landscape maintenance work. Proposals were received from eight (8) companies. All eight contractors that submitted proposals were interviewed. The interview panel included members of the Parks and Recreation Department, City Administration, and the Public Works Department. On December 9, 2008, City Council awarded Contracts for Landscape Maintenance to East Bay Construction Company (LLDs), Terracare Associates (formerly known as American Civil Constructors and ACC Landscape Services) (Parks), and Sycamore Landscaping (Right-of- Ways). These three contracts were to expire on December 31, 2010 unless otherwise extended by written amendment. In November 2010, City Council approved the renewal options for Terracare Associates ( Terracare ) and East Bay Construction Company ( EBCC ) for two-year renewals through December 31, 2012 due to the quality of work they were providing for the City. At that same time, the City terminated the contract with Sycamore Landscaping and divided their work amongst Terracare, EBCC, and JPA Landscape and Construction Company ( JPA ). JPA was doing weed abatement and open space landscape maintenance and was able to take on a small amount of additional landscape maintenance. The extensions for Terracare and EBCC were extended through December 31, 2012 and JPA maintained their term through June 30, 2011 as they were on a different two-year cycle. JPA s contract term was extended for two years through June 30, A companion staff report at the same meeting recommended a two-year renewal for Terracare and staff agreed to bring back JPA s contract back to City Council for approval in spring to be effective July 1, 2013 through December 31, Agenda Item A.2 - Page 2 of 7

3 In October 2013, City Council approved Amendment No. 7 to the Contract for Landscape Maintenance Services with EBCC in which two minor areas of new landscape improvements were added to EBCC s scope of work. These include the new John Muir Parkway landscape improvements and Los Nogales improvements along Walnut Boulevard. In addition, their Contract was extended by one year through December 31, In October 2013, the City was notified by telephone by Bill Ayers, President of EBCC that the company has been purchased by Marina Landscapes, Inc. (Marina). This conversation was followed up by a letter from Marina confirming the company s willingness and ability to fulfill all of the requirements of the Contract for Landscape Maintenance Services of Parks the City executed with EBCC in December 2008 and its subsequent amendments. Marina has provided all required insurance documents and has obtained a valid City business license. Marina intends to continue to use the exact same staff and equipment as has been used in this contract to date. Staff will be reconsidering the entire landscape maintenance and weed abatement contracts in 2014 and allowing all qualified contractors to respond to a Request for Proposal that will be approved by City Council with a start date of January 1, FISCAL IMPACT The fiscal impact of this Assignment and Assumption Agreement will not result in any changes to the contract or budget amounts. ATTACHMENT Resolution Assignment and Assumption Agreement Agenda Item A.2 - Page 3 of 7

4 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE AN ASSIGNMENT AND ASSUMPTION AGREEMENT TRANSFERRING LANDSCAPE MAINTENANCE SERVICES FROM EAST BAY CONSTRUCTION COMPANY (EBCC) TO MARINA LANDSCAPE, INC. WHEREAS, staff issued a Request for Proposals on September 29, 2008 for Landscape Maintenance Services for Parks, Street Medians, Open Space, and Right-of-Ways; and WHEREAS, the proposal process was executed in a manner which allowed for the fair competition of this work; and WHEREAS, a total of eight (8) proposals were received from companies on the October 31, 2008 proposal due date; and WHEREAS, the Contract for Landscape Maintenance for Parks was awarded to East Bay Construction Company (EBCC) on December 9, 2008; WHEREAS, EBCC notified the City of its company reorganization and requested an Assignment and Assumption Agreement be executed for a transfer of services for the remainder of the Contract for Landscape Maintenance Services of Parks from EBCC to Marina Landscape, Inc.; NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby approves and authorizes the City Manager or designee to execute an Assignment and Assumption Agreement transferring landscape maintenance services from East Bay Construction Company (EBCC) to Marina Landscape, Inc. PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a special meeting held on December 3, 2013 by the following vote: Agenda Item A.2 - Page 4 of 7

5 ASSIGNMENT AND ASSUMPTION AGREEMENT East Bay Construction Company/Marina Landscape, Inc. Agreement for Landscape Maintenance Services THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ( Assignment Agreement ) is made and entered into this day of, 2013, by and between the City of Brentwood, a municipal corporation of the State of California ( City ), East Bay Construction Company ( Assignor ) and Marina Landscape, Inc. ( Assignee ) (collectively, the Parties ), and is made with reference to the following facts: RECITALS A. On December 10, 2008, City and Assignor entered into a certain Contract for Landscape Maintenance Services (the Contract ). B. Section 10 of the Contract allows Assignor to assign rights and obligations under the Contract only upon written approval of the City. C. Assignor notified City in October 2013 that a merger took place between East Bay Construction Company and Marina Landscape, Inc., effective December 1, D. Assignor desires to assign its interest in the Contract to Assignee. Further, Assignee desires to accept assignment of Assignor's interest in the Contract and City consents to the assignment of the interest in the Contract from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor s rights and obligations as set forth in the Contract. 2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set forth in the Contract. 3. City Consent. City hereby agrees and consents to the assignment of all of Assignor's rights and obligations as set forth in the Contract to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Contract, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including the payment of prevailing wages and attorney s fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefited from this Assignment Agreement. This hold harmless provision shall apply to any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Assignee. A&A AGREEMENT H:\thoman\wp\Agreements\2013\Assignment & Assumption EBCC MLI - TH Agenda Item A.2 - Page 5 of 7

6 The Parties expressly agree that this section shall survive the expiration or early termination of this Contract Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement nor any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shall be tried in a court of competent jurisdiction in the County of Contra Costa, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: City of Brentwood Attention: Roger Stromgren, Park/Maintenance Manager 150 City Park Way Brentwood, CA Assignor: East Bay Construction Company Attention: William Ayers, President 5779 Preston Avenue Livermore, CA Assignee: Marina Landscape, Inc. Attention: Robert B. Cowan, President 1900 S. Lewis Street Anaheim, CA Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. A&A AGREEMENT H:\thoman\wp\Agreements\2013\Assignment & Assumption EBCC MLI - TH Agenda Item A.2 - Page 6 of 7

7 Agenda Item A.2 - Page 7 of 7

Exhibit E Meyers Nave Draft 2/12/14 ESCROW AGREEMENT. by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF PITTSBURG.

Exhibit E Meyers Nave Draft 2/12/14 ESCROW AGREEMENT by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF PITTSBURG and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Escrow