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CITY COUNCIL AGENDA ITEM NO. 24

Meeting Date:  May 23, 2000

Subject/Title:     Approval of contract with MCE Corporation for Citywide landscape maintenance.

Submitted by:    Craig D. Bronzan, Director of Parks and Recreation

Approved by:     Jon Elam, City Manager

RECOMMENDATION        

Approve recommendation to enter into a professional services agreement with MCE Corporation for Citywide landscape maintenance.

PREVIOUS ACTION

Staff was directed by City Council at the March 28, 2000 meeting to bring back a final recommendation for City Council action related to development of a professional services agreement for Citywide landscape maintenance to include parks, roadways, medians and lighting and landscape districts.

BACKGROUND

Staff has been working since last summer, on a Citywide approach for a professional services agreement for the ongoing maintenance of City parks, roadways, medians and lighting and landscape districts.  The process included Requests for Qualifications, Requests for Proposals, and three rounds of interviews of final candidates.  Staff also did site visits during the preparation of Citywide standards and of the two finalists.  Extensive reference checks were made to determine the satisfaction of customers who have been/are currently being served by the finalists.

After an extensive review process, staff is recommending approval of a professional services contract with MCE Corporation for the Citywide landscape maintenance services for the City of Brentwood.  Staff has worked out specific work plans for each park, landscape area, and lighting and landscape district that are within the proposed 2000/01 budget that will be adopted by City Council next month

Parks

The contract for parks will be "not to exceed" $324,451.  The work plan proposed from MCE is $310,665.  However, staff has added $13,786 to the proposal for three months of work at Garin Park and SPA L Heritage Park as it is now apparent they will both be on line for three months during the coming fiscal year.  The work plan budget and total park budgets fit within the proposed Engineer's Report for the City of Brentwood Citywide Park Maintenance District No. 98-1 for fiscal year 2000/01.

Landscape/Roadside

The Landscape/Roadside Areas budget, as funded by the City of Brentwood general fund, will be "not to exceed" $377,400.  This work program and budget is within the projected approval limits for the 2000/01 City of Brentwood budget.

Lighting and Landscape Districts

The lighting and landscape district work plan budget is "not to exceed" $370,615.  This budget is paid through the individual assessment districts in the City and is a part of the overall LLD assessment budget that is within the proposed Engineer's Report for the City of Brentwood fiscal year 2000/01.

The total contract for maintenance for fiscal year 2000/01 will be:

Parks                           $   324,451

Landscape/Roadside                            $   377,400

Lighting and Landscape Districts                       $   370,615

Total "not to exceed"                            $1,072,466

Additional work, as directed by the City of Brentwood, will be charged through unit prices on a "time and material" basis as listed in "Exhibit A - Schedule of Work" of the professional services agreement.

Staff will be giving a brief presentation on this report at the meeting and will have representatives of MCE Corporation in attendance to provide a short overview of their corporation and to answer questions concerning their work program.

Attachments:        Professional Services Agreement

                                Park budget/MCE Workplan

                                Roadway Landscape budget/MCE Workplan

                                Roadway Landscape (LLD) budget/MCE Workplan

                                Task Conversion Chart

                                City of Brentwood Park Maintenance Standards

AGREEMENT FOR PROFESSIONAL MAINTENANCE SERVICES

            PROFESSIONAL MAINTENANCE SERVICES AGREEMENT made this 23RD day of 2000 for the period of July 1, 2000 through June 30, 2001, between the City of Brentwood (“CITY”), and, MCE Corporation ("CONSULTANT"). The CITY and CONSULTANT agree to the following:

            SECTION 1.   PURPOSE OF AGREEMENT. The CITY desires to secure professional maintenance services on an as need basis, not to exceed $1,072,466.   Additional work, as directed by the City Manager or authorized staff personnel will be on a “time and materials” billing as listed in Exhibit A. 

            SECTION 2.   PERFORMANCE BY CONSULTANT.  The CONSULTANT shall undertake and prosecute the work diligently to conclusion, using that standard of care, skill and diligence normally provided by a professional person in the performance of such contract services in respect to work similar to that hereunder. Services shall be performed by Consultant's staff or by sub-contractor(s) with the written consent of the City Manager or authorized staff personnel.  The Consultant shall not change the scope of work without prior written approval from the City Manager or authorized staff personnel.  Accordingly, the Consultant shall:

a.         Commence work immediately after: CONSULTANT's receipt of a written notice to proceed from the City Manager or authorized staff personnel.

b.         The CONSULTANT shall perform any and all work needed to complete the tasks outlined the attached proposal (Exhibit “A”) as directed by the City Manager or authorized personnel to the satisfaction of the City.

c.         The CONSULTANT shall complete the work mutually agreed upon within the time frame included in the attached proposal (Exhibit “A”).

            SECTION 3.   TERMINATION.  This Agreement may be terminated by either the CITY or the CONSULTANT following ninety (90) days written notice of intention to terminate; thereafter, the CITY shall be liable to the CONSULTANT only for those fees and costs earned by CONSULTANT to the date of termination and which shall be substantiated by an itemized written statement certified and submitted to CITY by the CONSULTANT.  The CITY's right of termination shall be in addition to all other remedies available under law to the CITY.  The CONSULTANT is not entitled to unemployment benefits upon termination of this Agreement with the CITY.  In any event, this Agreement shall expire on June 30, 2001 with two renewal options of three years each for maximum term of seven years.  Upon termination or expiration of this Agreement, the obligations of the parties shall cease, save and except for those provided under Sections 6, 8, 9, 11 through 15.

            SECTION 4.   SUB-CONTRACTORS.  None of the services covered by this Agreement shall be subcontracted without the prior written consent of the City Manager or his designee.  The CONSULTANT shall be as fully responsible to the CITY for the acts and omissions of his sub-contractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of himself and persons directly employed by CONSULTANT.  The CONSULTANT shall incorporate this Agreement into all subcontractor agreements so as to bind the subcontractor to the same type of level of performance as is required herein of the CONSULTANT.

            SECTION 5.   ASSIGNMENT.  This Agreement may not be assigned by CITY or CONSULTANT without prior, written consent of the other.

            SECTION 6.   INDEPENDENT CONTRACTOR.  CONSULTANT shall in all respects be an independent contractor and not an employee of the CITY.  In particular, CONSULTANT shall receive no premium or enhanced pay for work normally understood as overtime; nor shall CONSULTANT receive holiday pay, sick leave, administrative leave or pay for any other time not actually worked. Specifically, the CITY's rules, regulations, ordinances and memoranda of understanding relating to employee organizations shall not apply to any CONSULTANT.  It is intended by the parties that CONSULTANT shall not be eligible for benefits and shall receive no compensation from the CITY, except as expressly set forth in this Agreement.

            CONSULTANT is an independent contractor pursuant to Labor Code §3353.  CONSULTANT shall be responsible for the means, equipment and resources necessary to perform the consultant services.  CITY has no obligation to withhold or pay income taxes, unemployment and disability taxes, FICA or FUTA contributions, or PERS contributions.  CITY shall file a Form 1099, where applicable, reflecting compensation paid to CONSULTANT.  CONSULTANT shall be responsible for all employment taxes for all CONSULTANT’S employees.

            SECTION 7.   ADDITIONAL SERVICES.  In addition to the ongoing services described herein, the CITY and CONSULTANT may agree in writing during the terms of this Agreement, that the CONSULTANT shall perform additional services found to be necessary.  Such additional services shall not be undertaken by the CONSULTANT until there is an Agreement between the CITY and the CONSULTANT as to the scope of the services and the cost to perform said services and the CONSULTANT has received written authorization to proceed from the CITY.

            SECTION 8.   CONFIDENTIALITY.  Any report, information, exhibits, data, materials or other work given to or prepared or assembled by the CONSULTANT under this Agreement shall be confidential and shall not be made available to any third person or organization by the CONSULTANT without prior written approval of the City Attorney.  CONSULTANT is considered part of the City for purposes of protecting communications between CONSULTANT and City’s legal counsel under the attorney-client privilege.  

            SECTION 9.   OWNERSHIP OF INFORMATION.  All reports, exhibits, data, materials, or other work prepared by the CONSULTANT in compliance with this Agreement shall become the property of the CITY.  The CONSULTANT shall deliver these items to the CITY, within thirty (30) days after the completion of the work.  Materials will not be used for any other purposes without the expressed permission of the CONSULTANT.

SECTION 10. PAYMENT.  In consideration of the CONSULTANT's performance of the work under this Agreement, the CITY shall pay the CONSULTANT at the rates and for the hours actually performed by the CONSULTANT in accordance with the rates set forth in Exhibit "A", attached hereto and made a part hereof so long as the estimated time schedule and quote required under Section 2C is furnished at the outset of each project.  Payment by the CITY to the CONSULTANT shall be made within thirty (30) days after receipt of the CONSULTANT's acceptable itemized billing.

            SECTION 11.  ACCESS TO RECORDS.  During the term of this contract and for a period of three (3) years after its termination or expiration, the CITY, or its duly authorized representatives, shall have access to any books, documents, papers and records of the CONSULTANT and of any sub-contractor of CONSULTANT, which are pertinent to this contract for the purpose of making audit, examination, excerpts and transcriptions.  The CONSULTANT shall require any of his sub-contractors under this Agreement to comply with this provision.

            The CITY shall have the right to access and audit the records of CONSULTANT for a period of three (3) years after the payment of any invoice.  CONSULTANT shall keep records according to the following standards, at a minimum:  All invoices shall provide a brief description and date of the work performed, segregated by CONSULTANT and any subcontractors as well as by task/project.  In the event CONSULTANT receives written consent under Section 4 to use subcontractors, CONSULTANT shall identify them by name and address on the invoice and list any and all labor, materials, or equipment charges incurred by subcontractor that are charged to the CITY.  CITY shall not pay entertainment expenses of CONSULTANT or subcontractors.

            SECTION 12.  EXCLUSION OF LIABILITY; LIABILITY INSURANCE AND AGREEMENT TO HOLD HARMLESS.  CONSULTANT shall indemnify and hold harmless the CITY and its officers, agents and employees from all claims arising out of the negligent acts or omissions of CONSULTANT in performing services under this Agreement.  CITY shall indemnify and hold harmless the Consultant for claims solely arising out of the negligent acts of the CITY, its officers, agents and employees relating to this Agreement. 

            SECTION 13. JURISDICTION.  This Agreement shall be administered and interpreted under the laws of the State of California.  Jurisdiction of litigation arising from the Agreement shall be in Contra Costa County.  If any part of this Agreement is found in conflict with applicable laws, such part shall be inoperative, null and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect.

            SECTION 14. INSURANCE.  MCE Corporation shall obtain and maintain liability insurance coverage of at least $1,000,000 for bodily injuries, property damage, and wrongful death. Automobile insurance shall be maintained in the following limits:  Bodily injury $500,000 for each occurrence; property damage - $250,000 for each occurrence; combined single limit - $500,000 for each occurrence.  To ensure coverage, MCE Corporation will forward certificates of insurance to the City and will require any subcontractors under this agreement to comply with this provision.

            SECTION 15. ATTORNEY'S FEES.  In the event either party to this Agreement brings an action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees, witness fees and legal costs.  For purposes of this provision, "prevailing party" shall include a party which dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action or proceeding.

            SECTION 16. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS.  Before commencing the services required hereunder, CONSULTANT shall disclose any potential conflicts of interest.  "Conflicts of interest" include, without limitations, doing business with or investing with any company in the development, brokerage or appraisal industry within the sphere of influence of CITY.  During the term of this Agreement, CONSULTANT shall refrain from any such conflicts of interest.  CITY reserves its rights to terminate this Agreement based upon the disclosure of conflicts or the existence of conflicts not disclosed by CONSULTANT.

            CONSULTANT shall comply with all federal, State and Local laws, statutes, ordinances, rules and regulations affecting the performance of this Agreement, including without limitation laws requiring licensing and non-discrimination in employment because of race, creed, color, sex, age, marital status, physical or mental disability, national origin or other prohibited bases.

            SECTION 17. CONFLICT OF INTEREST.  No director, employee, subcontract or agent of CONSULTANT’S company shall give or receive any commission, fee, rebate, gift or entertainment in connection with the services to be performed by CONSULTANT under this agreement. 

 

EXHIBIT "A"

FEE SCHEDULE

EXHIBIT "B"

SPECIAL CONDITIONS

  1.1       Licensing.  Contractors must be properly licensed by the State Contractors License Board

1.2       Reporting Requirements.  Contractors will be required to submit productivity reports by site comparing actual performance against the contract work plan. Reports will be required at least monthly and electronic data transfer is preferred. Another option is direct data entry into City’s CMMS.

1.3       Local Hiring Plan.  Contractor(s) must include in the proposal a specific plan for hiring, training and retaining Brentwood residents to implement the contract or to fill vacancies that may be created during the term of the contract. The plan should estimate the number of total hires during mobilization, the methods of recruitment of Brentwood residents, training and retention plans for new hires. Contractor(s) must supply a local hiring goal for the first contract year and will receive a bonus of up to 1% of the proposal amount for achieving it by the end of the first contract year.

1.4       Pricing.  The contractor will agree to perform the described work for the prices and markup stipulated in the contract for a period of at least 12 months from the award of the contract. Contractor further agrees to accept new work assigned by City during each contract period at the costs quoted in the proposal or at adjusted costs for succeeding annual periods.

At the request of the contractor, City will renegotiate price at the end of each 12-month period for the succeeding year. All price increases will be based on Bureau of Labor Statistics – Consumer Price Index-All Urban Consumers for the San Francisco-Oakland-San Jose metropolitan area. City also agrees to adjust payments to reflect changes in work quantities and to pay for new work assigned to contractor at the contract rates then in effect. Adjustments to quantities may be requested by either party and is subject to field verification.

1.5       Vandalism and accidental damage.  City assumes responsibility for the cost of repairing or replacing appurtenances damaged by persons other than the contractor or his agents. Vandalism or accidental damage repair costs shall be based on unit costs submitted by contractor in the proposal or on time and materials quotes for work not called out in the proposal. Contractor(s) shall be responsible for reporting to City and repairing or replacing all appurtenances damaged by contractor(s) or contractor’s agents.

1.6       Outcome-based contract and problem resolution process.  City staff will work closely with contractor(s)’ representatives to achieve the results described in the standards and inspection criteria. City will regularly inspect the contractor(s)’ work and rate it according to the inspection criteria attached. (Please refer to Exhibits 1-3 for standards, work plan and inspection criteria.) City will pay contractor(s) for work rated as “meets standards” or “needs improvement.” City will not pay contractor(s) for work rated as “unsatisfactory” until conditions “meet standards.” City will not make additional payments to Contractor(s) for remedial work required to improve “unsatisfactory” areas. City may assess contractor(s) any City costs if re-mediation is performed by City.

The parties will observe the following problem resolution process:

  • field conference with inspector / contractor's field representative to identify problem and agree on solution
  • written notice of problem and failure to remedy (timing varies)
  • conference between city's contract manager and contractor's principal (timing varies)
  • 48 notice to correct defect (timing varies)
  • imposition of penalties and/or correcting defect at contractor's cost
  • termination of contract

1.7 Contract duration and termination.  City intends to establish a partnership-based relationship with its maintenance service provider(s). City will enter into a one-year initial contract with two renewal options of three years each for maximum term of seven years. In the event that the relationship is not effective for one of the parties, either party may terminated this agreement with 90 days written notice to the other party.

1.8   Performance bonuses and cost-savings incentives.  City of Brentwood will offer a performance bonus of 1.0% to 5.0% of quarterly billed amounts for consistent “meets standards” performance. When contractor(s) achieve at least a 95% “meets standards” for quarterly inspections, contractor(s) will receive a bonus as follows:

Percent

“Meets Standard”

Percent of

Quarterly Bill

=>98%

5.0%

97%

3.0%

96%

2.0%

95%

1.0%

Contractor(s) also will be eligible to earn profits from cost saving ideas. If contractor(s) present operational or material changes that permit meeting standards at a lower cost, city may adopt those cost reducing procedures or materials. Contractor(s) then may earn estimated profit on the savings for the remaining life of the contract. Contractor(s) and city will agree on profit amounts and payout schedules.

1.9       Substandard areas at beginning of contract  City will identify and verify in the field with contractor(s) areas where substandard conditions exist. City will not apply inspection criteria in those areas until City at its cost completes renovation or rehabilitation. City will expect the contractor to maintain the identified substandard areas at a level that prevents further deterioration.

1.10     Adjustment period  For the first three months, contractor(s) and City will conduct inspections jointly to reconcile differing approaches to measuring outcomes. City will pay contractor(s) for all work during the adjustment period regardless of rating. Contractor(s), however, will not be eligible to accumulate points toward performance bonuses until adjustment period has been completed. Contractor may elect an earlier termination of the adjustment period.

1.11   City landscape maintenance contract manager.  Prior to award, City will assign a “landscape contract manager” with responsibility and final authority for all park and roadway landscape maintenance contracts and related subcontracts and services. The “landscape contract manager” will have ultimate responsibility for management of all such contracts including negotiating, renegotiating, awarding bonuses, imposing penalties, termination and renewal.

City Administration
City of Brentwood City Council
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Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov