HomeMy WebLinkAbout4.10 - 1302 Agreement with East Bay Pool Service for Po
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STAFF REPORT
CITY COUNCIL
DATE: February 7, 2017
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Agreement with East Bay Pool Service for Pool Maintenance Services at
the Emerald Glen Recreation and Aquatic Complex
Prepared by: Micki Cronin, Asst. Director of Parks & Community Services
EXECUTIVE SUMMARY:
The City Council will consider a service contract with East Bay Pool Service for pool
maintenance at Emerald Glen Recreation and Aquatic Complex and other pool services
as requested by the City. A Request for Proposals (RFP) was released in December
20, 2016 on the City's online bidding system with East Bay Pool Service emerging as
the sole responder. Staff is recommending a three -year service agreement with East
Bay Pool Service expiring on December 31, 2019, subject to annual appropriation of
funds.
STAFF RECOMMENDATION:
Adopt the Resolution Approving an Agreement with East Bay Pool Service for Pool
Maintenance Services.
FINANCIAL IMPACT:
The expense for this Agreement annually is $113,140. Costs incurred this Fiscal Year
are included in the current Operating Budget. Expenses that extend beyond this Fiscal
Year will be included future budget cycles.
DESCRIPTION:
Currently, the City contracts for pool maintenance services with East Bay Pool Service
and these services have been used at the Dublin Swim Center. With the anticipated
opening of the Emerald Glen Recreation and Aquatic Complex, Staff issued a Request
for Proposals for general and emergency pool maintenance services inclusive of the
Natatorium, Sports Pool, Slide Tower, and Children’s Splash Zone. Notice was given to
seven known pool maintenance companies about the bid packet and it was advertised
on the City's Bid Posting section of the City website.
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East Bay Pool Service emerged as the sole responder for the pool maintenance
services. Therefore, Staff is recommending the City enter into an agreement with East
Bay Pool Service to continue providing pool maintenance services to the City. The
Agreement, as drafted, would expire on December 31, 2019.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A copy of the Staff Report was distributed to East Bay Pool Service.
ATTACHMENTS:
1. Resolution Approving an Agreement with East Bay Pool Service for Pool
Maintenance Services
2. Exhibit A to Resolution - East Bay Pool Service Agreement
ATTACHMENT 1
RESOLUTION NO. XX - 17
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * *
APPROVING AN AGREEMENT WITH EAST BAY POOL SERVICE FOR POOL
MAINTENANCE SERVICES
WHEREAS, Staff issued a Request for Proposal for general and emergency pool
maintenance services for the Natatorium, Sports Pool, Slide Tower, and Children’s Splash Zone for
the Emerald Glen Recreation and Aquatic Complex; and
WHEREAS, East Bay Pool Service emerged as the sole responder for the pool maintenance
services; and
WHEREAS, East Bay Pool Service is prepared to complete the work outlined in the Scope of
Services; and
NOW, THEREFORE BE IT RESOLVED, the City Council of the City of Dublin does hereby
approve the Agreement with East Bay Pool Service, attached hereto as Exhibit A, for the Emerald
Glen Recreation and Aquatic Complex
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement.
PASSED, APPROVED AND ADOPTED this 7th day of February, 2017, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
EAST BAY POOL SERVICE
THIS AGREEMENT for consulting services is made by and between the City of Dublin ( "City ") and East Bay
Pool Service ( "Consultant ") as of March 1, 2017,
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall
provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the
manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall
end on December 31, 2019, and Consultant shall complete the work described in Exhibit A prior to
that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in
Section 8. The time provided to Consultant to complete the services required by this Agreement
shall not affect the City's right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first -class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services
pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term
of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately
upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance provided in
Section 1.1 above and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed one hundred
thirteen thousand one hundred forty dollars ($113,140.00) annually, notwithstanding any contrary indications that
may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this
Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A,
regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered
pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be
the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit
all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill
City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is
based upon Consultant's estimated costs of providing the services required hereunder, including salaries and
benefits of employees and subcontractors of Consultant, Consequently, the parties further agree that compensation
hereunder is intended to include the costs of contributions to any pensions and /or annuities to which Consultant and
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City of Dublin and East Bay Pool Service Page 1 of 15
its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions
beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of
this Agreement, based on the cost for services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
• Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
• The beginning and ending dates of the billing period;
• A Task Summary containing the original contract amount, the amount of prior billings, the
total due this period, the balance available under the Agreement, and the percentage of
completion;
• At City's option, for each work item in each task, a copy of the applicable time entries or
time sheets shall be submitted showing the name of the person doing the work, the hours
spent by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and
each employee, agent, and subcontractor of Consultant performing services hereunder,
as well as a separate notice when the total number of hours of work by Consultant and
any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800
hours, which shall include an estimate of the time necessary to complete the work
described in Exhibit A;
• The Consultant's signature.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services
satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days
from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within
sixty (60) days after completion of the services and submittal to City of a final invoice, if all services
required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this
Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by
Consultant in rendering services pursuant to this Agreement. City shall make no payment for any
extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of
compensation provided above either for a task or for the entire Agreement, unless the Agreement
is modified prior to the submission of such an invoice by a properly executed change order or
amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis for repair work and
emergency maintenance work in addition to those regular services set for in Exhibit A shall not
exceed $90.00 per labor -hour.
2.6 Reimbursable Expenses. Reimbursable expenses are included in the total amount of
compensation provided under this Agreement that shall not be exceeded without the City's prior
approval.
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2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement
pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and
reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of
termination. Consultant shall maintain adequate logs and timesheets in order to verify costs
incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or
incur any costs whatsoever under the terms of this Agreement until receipt of authorization from
the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and
expense, provide all facilities and equipment that may be necessary to perform the services required by this
Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only
under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably
necessary for Consultant's use while consulting with City employees and reviewing records and the information in
possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of
City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including
but not limited to computer, long- distance telephone or other communication charges, vehicles, and reproduction
facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City, Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance
and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION
DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self -
insurance program to meet those requirements, but only if the program of self- insurance complies
fully with the provisions of the California Labor Code. Determination of whether a self- insurance
program meets the standards of the Labor Code shall be solely in the discretion of the Contract
Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self -
insurance is provided, shall waive all rights of subrogation against the City and its officers, officials,
employees, and volunteers for loss arising from work performed under this Agreement.
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An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City. Consultant
shall notify City within 14 days of notification from Consultant's insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this Agreement in an
amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence,
combined single limit coverage for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an Automobile Liability 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. Such coverage shall
include but shall not be limited to, protection against claims arising from bodily and
personal injury, including death resulting therefrom, and damage to property resulting
from activities contemplated under this Agreement, including the use of owned and non -
owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad
as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed.
11/88) or Insurance Services Office form number GL 0002 (ed. 1/73) covering
comprehensive General Liability and Insurance Services Office form number GL 0404
covering Broad Form Comprehensive General Liability. Automobile coverage shall be at
least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90)
Code 8 and 9 ( "any auto "). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance
coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
additional insureds with respect to each of the following: liability arising out of
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; and automobiles owned,
leased, or used by the Consultant. The coverage shall contain no special
limitations on the scope of protection afforded to City or its officers, employees,
agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims -made basis.
C. An endorsement must state that coverage is primary insurance with respect to
the City and its officers, officials, employees and volunteers, and that no
insurance or self- insurance maintained by the City shall be called upon to
contribute to a loss under the coverage.
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Any failure of CONSULTANT to comply with reporting provisions of the policy
shall not affect coverage provided to CITY and its officers, employees, agents,
and volunteers.
e. An endorsement shall state that coverage shall not be canceled except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the City. Consultant shall notify City within 14 days of notification
from Consultant's insurer if such coverage is suspended, voided or reduced in
coverage or in limits.
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000) covering the licensed professionals' errors and omissions.
4.3.1 Any deductible or self- insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims -made form:
The retroactive date of the policy must be shown and must be before the date of
the Agreement.
Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so long as
commercially available at reasonable rates.
If coverage is canceled or not renewed and it is not replaced with another claims -
made policy form with a retroactive date that precedes the date of this
Agreement, Consultant must provide extended reporting coverage for a minimum
of five years after completion of the Agreement or the work. The City shall have
the right to exercise, at the Consultant's sole cost and expense, any extended
reporting provisions of the policy, if the Consultant cancels or does not renew the
coverage.
A copy of the claim reporting requirements must be submitted to the City prior to
the commencement of any work under this Agreement.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with
insurers with a Bests' rating of no less than A:VII.
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4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Consultant
shall furnish City with certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy
are to be signed by a person authorized by that insurer to bind coverage on its behalf.
The City reserves the right to require complete, certified copies of all required insurance
policies, at any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein.
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements,
upon a determination that the coverages, scope, limits, and forms of such insurance are
either not commercially available, or that the City's interests are otherwise fully protected,
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self- insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self -
insured retentions with respect to City, its officers, employees, agents, and volunteers.
The Contract Administrator may condition approval of an increase in deductible or self -
insured retention levels with a requirement that Consultant procure a bond, guaranteeing
payment of losses and related investigations, claim administration, and defense expenses
that is satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this
section is reduced, limited, or materially affected in any other manner, Consultant shall
provide written notice to City at Consultant's earliest possible opportunity and in no case
later than five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or
maintain any insurance policies or policy endorsements to the extent and within the time herein
required, City may, at its sole option exercise any of the following remedies, which are alternatives
to other remedies City may have and are not the exclusive remedy for Consultant's breach:
■ Obtain such insurance and deduct and retain the amount of the premiums for such insurance
from any sums due under the Agreement;
■ Order Consultant to stop work under this Agreement or withhold any payment that becomes
due to Consultant hereunder, or both stop work and withhold any payment, until Consultant
demonstrates compliance with the requirements hereof; and /or
■ Terminate this Agreement,
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
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arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and /or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not
have the right to control the means by which Consultant accomplishes services rendered pursuant
to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or
ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing services under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any and all claims to, any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the California Public Employees Retirement
System (PERS) as an employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant
shall have no authority, express or implied, pursuant to this Agreement to bind City to any
obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governinq Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws
applicable to the performance of the work hereunder.
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7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal
assistance from another governmental entity, Consultant and any subcontractors shall comply with
all applicable rules and regulations to which City is bound by the terms of such fiscal assistance
program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its
employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, any
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shall
obtain and maintain during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for
employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for
any services or programs provided by Consultant under this Agreement. Consultant shall comply
with all applicable federal, state, and local laws, policies, rules, and requirements related to equal
opportunity and nondiscrimination in employment, contracting, and the provision of any services
that are the subject of this Agreement, including but not limited to the satisfaction of any positive
obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation
upon Consultant delivering to City any or all documents, photographs, computer software, video
and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the
City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement
beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment
to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants
such an extension, City shall have no obligation to provide Consultant with compensation beyond
the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract
Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable
expenses incurred during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
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8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement
contemplates personal performance by Consultant and is based upon a determination of
Consultant's unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence of Consultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval of the Contract Administrator. Consultant
shall not subcontract any portion of the performance contemplated and provided for herein, other
than to the subcontractors noted in the proposal, without prior written approval of the Contract
Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this
Agreement allocating liability between City and Consultant shall survive the termination of this
Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this
Agreement, City's remedies shall included, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work
product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by
Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described in
Exhibit A that is unfinished at the time of breach and the amount that City would have paid
Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts,
studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any
other documents or materials, in electronic or any other form, that Consultant prepares or obtains
pursuant to this Agreement and that relate to the matters covered hereunder shall be the property
of the City. Consultant hereby agrees to deliver those documents to the City upon termination of
the Agreement. It is understood and agreed that the documents and other materials, including but
not limited to those described above, prepared pursuant to this Agreement are prepared
specifically for the City and are not necessarily suitable for any future or other use. City and
Consultant agree that, until final approval by City, all data, plans, specifications, reports and other
documents are confidential and will not be released to third parties without prior written consent of
both parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of
account, invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services or expenditures and disbursements charged to the City under this
Agreement for a minimum of three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
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9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and /or copying at any
time during regular business hours, upon oral or written request of the City. Under California
Government Code Section 8546,7, if the amount of public funds expended under this Agreement
exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three (3) years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory
relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The
court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement,
the parties agree that trial of such action shall be vested exclusively in the state courts of California
in the County of Alameda or in the United States District Court for the Northern District of
California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement
is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in
full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not
void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement
does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall
apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and
other printed material on recycled paper to the extent it is available at equal or less cost than virgin
paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the
corporate limits of City or whose business, regardless of location, would place Consultant in a
"conflict of interest," as that term is defined in the Political Reform Act, codified at California
Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No
officer or employee of City shall have any financial interest in this Agreement that would violate
California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months,
an employee, agent, appointee, or official of the City. If Consultant was an employee, agent,
appointee, or official of the City in the previous twelve months, Consultant warrants that it did not
participate in any manner in the forming of this Agreement. Consultant understands that, if this
Consulting Services Agreement between March 1, 2017
City of Dublin and East Bay Pool Service Page 10 of 15
Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void
and Consultant will not be entitled to any compensation for services performed pursuant to this
Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the
City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing,
it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview
related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Micki Cronin, Assistant
Director of Parks and Community Services ( "Contract Administrator "). All correspondence shall be
directed to or through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
Jim Vance
East Bay Pool Service
1547 Palos Verdes Mall #240
Walnut Creek, CA 94597
Any written notice to City shall be sent to:
Assistant Director of Parks and Community Services
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first
page of a technical report, first page of design specifications, and each page of construction
drawings shall be stamped /sealed and signed by the licensed professional responsible for the
report/design preparation. The stamp /seal shall be in a block entitled "Seal and Signature of
Registered Professional with report/design responsibility," as in the following example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral.
[Signatures follow on next page]
Consulting Services Agreement between March 1, 2017
City of Dublin and East Bay Pool Service Page 11 of 15
CITY OF DUBLIN
Christopher L. Foss, City Manager
Attest:
Caroline P. Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
CONSULT
m v ?nce, uwner
Consulting Services Agreement between March 1, 2017
City of Dublin and East Bay Pool Service Page 12 of 15
EXHIBIT A
SCOPE OF SERVICES
1. DEFINITIONS. The following definitions shall apply:
1.1 Daily. DAILY shall mean seven (7) days per week from May 1 — September 30; five (5) days per week
from October 1 — April 30.
1.2 Weekly. WEEKLY shall mean one day per week. Day(s) selected shall be determined by Consultant
and approved by the City.
1.3 Bi- weekly. BI- WEEKLY shall mean once per two -week period. Day(s) selected shall be determined by
Consultant and approved by the City.
1.4 Monthly. Monthly shall mean once per calendar month. Day(s) selected shall be determined by
Consultant and approved by the City.
1.5 As Needed or As Required. AS NEEDED or AS REQUIRED shall mean any item or service area
serviced to a safe and clean condition as determined by the City.
2. DAILY SERVICES.
2.1 Natatorium
2.1.1 Test the water chemistry.
2.1.2 Test the water chemistry at chemical controller and calibrate units as needed.
2.1.3 Add and/or adjust chemicals as needed.
2.1.4 Check pool temperature and make adjustments to keep at suggested temperature.
215 Empty /clean all skimmer baskets and vacuum pump strainers.
2.1.6 Skim pool
2.2 Children's Splash Zone
221 Test the water chemistry
2.2.2 Test the water chemistry at chemical controllers and calibrate units as needed.
2.2.3 Add and/or adjust chemicals as needed.
2.2.4 Check pool temperature and make adjustments to keep at suggested temperature
2.2.5 Empty/clean all skimmer baskets and vacuum pump strainers
2.2.6 Skim pool
2.2.7 Check operating pressure and flow to all effects
2.2.8 Visually inspect climbing and safety nets
2.2.9 Visually inspect web crawl tunnels
2.3 Slide Tower
23.1 Test the water chemistry for all slides
2.3.2 Test the water chemistry at chemical controllers and calibrate units as needed
2.3.3 Add and/or adjust chemicals as needed.
2.3.4 Check pool temperature and make adjustments to keep at suggested temperature
2.3.5 Empty/clean all skimmer baskets and vacuum pump strainers
2.3.6 Skim all runout lanes
2.4 Sports Pool
2.4.1 Test the Water chemistry.
2.4.2 Test the water chemistry at chemical controllers and calibrate units as needed
2.4.3 Add and/or adjust chemicals as needed.
2.4.4 Check pool temperature and make adjustments to keep at suggested temperature.
Consulting Services Agreement between March 1, 2017
City of Dublin and East Bay Pool Service Page 13 of 15
2.4.5 Empty /clean all skimmer baskets and vacuum pump strainers.
2.4.6 Skim the pool
3. WEEKLY SERVICES.
3.1 Natatorium
3.1.1 Fully vacuum one time per week
3.1.2 Test total alkalinity and calcium hardness.
3.2 Children's Splash Zone
3.2.1 Vacuum entire pool two times a week from March thru October and one time per week the
remainder of the year. Uncover and recover the pool as needed.
3.2.2 Test total alkalinity and calcium hardness.
3.2.3 Visually inspect large tipping bucket assembly
3.2.4 Visually inspect swinging bridge joints
3.2.5 Inspect waterslides
3.2.6 Check operation of jets and nozzles and clean as requires
3.2.7 Check valve operating assemblies
3.3 Slide Tower
3.3.1 Fully vacuum all run out flumes two times a week during the months of June, July and
August, and one time per week the remainder of the year. Uncover and recover the pool
as needed.
3.3.2 Test total alkalinity and calcium hardness.
3.3.3 Inventory pool chemicals.
3.3.4 Other preventative maintenance.
3.4 Sports Pool
3.4.1 Fully vacuum pool two times a week. Uncover and recover the pool as needed.
3.4.2 Test total alkalinity and calcium hardness.
3.4.3 Inventory pool chemicals.
4. BI- WEEKLY SERVICES.
4.1 Natatorium
4.1.1
Backwash filters (or more often as needed).
4.2 Children's Splash Zone
4.2.1
Backwash filters (or more often as needed).
4.3 Slide Tower
4.3.1
Backwash filters (or more often as needed).
4.4 Sports Pool
4.4.1
Backwash filters (or more often as needed).
Consulting Services Agreement between March 1, 2017
City of Dublin and East Bay Pool Service Page 14 of 15
5. Pre - Operation
5.1 Children's Splash Zone
5.1.1 Install water features
5.1.2 Inspect tipping bucket
5.1.3 Wax water slides
5.2 Slide Tower
5.21 Wax water slides
6. End of Season
6.1 Children's Splash Zone
6.1.1
Drain Play Structure
6.1.2
Inspect entire structure. Submit a report with cost estimates for any repairs that are
needed.
6.1.3
Clean components as needed
6.1.4
Inspect paint and/or galvanizing. Submit a report with cost estimates for any repairs that
are needed.
6.1.5
Remove, label, and store small parts
6.1.6
Inspect Tipping Bucket
6.1.7
Wax water slides
6.2 Slide Tower
6.2.1 Wax water slides
7. General Maintenance
7.1 Check all pools and slide flumes for algae and take necessary steps to remedy.
7.2 Inventory pool chemicals.
7.3 General upkeep of the high -rate sand filters for each circulation system.
7.4 Check flow meters and pressure gauges.
7.5 Complete and submit checklists and maintenance reports.
8. Other Maintenance and Repair Services as Needed
8.1 On call availability when a maintenance or repair situation occurs. With a maximum response time
of 30 minutes when maintenance issues occur during operational hours and impact the use of a
pool or attraction. Repairs are billed at the approved hourly rate.
8.2 Response time of 24 hours or less when maintenance issues do not impact the use of a pool or
attraction.
9. SERVICE FREQUENCY.
9.1 May 1— September 30
9.2 October 1— April 30
Consulting Services Agreement between
City of Dublin and East Bay Pool Service
7 days per week $10,560.00 per month
5 days per week $8,620.00 per month
March 1, 2017
Page 15 of 15