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HomeMy WebLinkAbout08 - Mariners Park Playground and SurfacingCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 February 27, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Recreation & Senior Services Department Wes Morgan, Director— 949-644-3157— wmorgan(a�city. newport- beach.ca.us SUBJECT: Contract with Linnert Builders to complete the Mariners Park Playground and Surfacing Project RECOMMENDATION Approve contract with Linnert Builders to perform the attached scope of work at Mariners Park. DISCUSSION Four playground installers (Linnert Builders, Fleming Environmental, Park Specialties and TD Grogan) were contacted and attended a pre -bid meeting at Mariners Park on January 17, 2007. One bid was received from Linnert Builders. The bid from Linnert Builders and the already purchased playground equipment does not exceed the $120,000 budgeted in account 7251- C4120908 in current FY 2007. Funds for this project are from the 2002 Roberti Z'Berg Harris Resource Bond Act grant funds. Scope of work with Linnert Builders includes: • Demolition and removal of existing play equipment • Installation of new play equipment • Relocation of the existing Sea Lion • Excavate and install a new 2 -5 year old play area (452 sq ft) • Furnish asphalt sub -base for protective surface • Installation of Softile safety surfacing Attachment: A. Linnert Builders Contract B. Site Map Services Director Contract with Linnert Builders For Installation of Playground equipment at Mariners Park and Surfacing at Mariners Park and Peninsula Park THIS CONTRACT is made and entered into as of this day of , 2007, by'and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Linnert Builders, whose principal place of business is 1675 N Shaffer St, Orange CA 92867 ( "Contractor "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to install new playground equipment at Mariners Park and surfacing at Mariners Park and Peninsula Parks ( "playground installation "). C. The Playground equipment was manufactured by Landscape Structures, Inc. The equipment includes a PlayBooster 5 -12 Playstructure (Model No. 5374- 1 -3 -1), a Independent Orbiter -3 (Model No. 154359A) and a Learning Wall (Model No. 5374- 1 -3 -2) (herinafter the "Equipment ") D. City desires to engage Contractor to remove old playground, install new equipment provided by the City and construct a new 24' pit. Additionally City desires to engage Contractor to install play surfacing at Mariners and Peninsula Parks. Contractor has agreed to perform the Project over a two week period, commencing on Date to be mutually agreed upon by Contractor and City. Work shall be completed within 14 days of commencement. E. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications (Exhibit A) set forth by the City for the Project, and 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 Contract. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows SCOPE OF WORK Contractor shall perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 2. TIME OF PERFORMANCE Contractor shall complete the Work within the time set forth in Section D. The failure by Contractor to meet this deadline may result in termination of this Contract by City and assessment of damages as outlined in Section 2.1. 2.1 The parties agree that it is extremely difficult-and impractical to determine and fix the actual damages that City will sustain should the Contractor fail to complete the Project within the time allowed. Should Contractor fail to complete the work called for in this Contract on the date outlined above, Contractor agrees to the deduction of liquidated damages in the sum of Fifty Dollars ($50) for each calendar day beyond the date scheduled for completion provided in Section 2 of this Agreement assuming that the Contractor has access to the space on (tbd) as described herein. Execution of this Agreement shall constitute agreement by the City and Contractor that Fifty Dollars ($50) per calendar day is the minimum value of the costs and actual damage caused by the failure of the Contractor to complete the work within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty, and may be deducted from payments due the Contractor if such delay occurs. 3. COMPENSATION As full compensation for the performance and completion of the Project as required by the Scope of Work, City shall pay to Contractor and Contractor accepts as full payment the sum of fifty five thousand three hundred and thirty-five dollars and 00/100 ($55,335.00). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. Contractor will be paid upon successful completion of the project. 4. ADMINISTRATION This Contract will be administered by the Recreation & Senior Services Department. Sean Levin shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Contract. 5. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 5.1 Contractor shall use only the equipment described in Exhibit A in performing Contract Services. Any deviation from the design or equipment described in Exhibit A shall not be installed unless approved in advance by the City Administrator. 5.2 All of the services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the services required by this Contract, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 6. RESPONSIBILITY FOR DAMAGES OR INJURY 6.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subconcontractors, or its workers, or anyone employed by either of them. 6.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 6.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Contract; (2) use of improper materials in performing this Project; including, without limitation, defects in workmanship or materials and /or design defects or (3) any and all claims asserted by Contractor's subconcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. However, nothing herein shall require Contractor to indemnify City from the sole negligence or willful misconduct of City, ifs officers or employees. 6.4 Contractor shall perform all Project work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Project work. 6.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 6.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the terms of this Contract, except to the extent provided in Section 6.3 above. 6.7 The rights and obligations set forth in this Section shall survive the termination of this Contract. 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 Contract. No civil service status or other right of employment shall accrue to Contractor or its employees. 8. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Contractor on the Project. 9. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of work, Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Contract. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of Califomia. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liabilitv Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance 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 Contract, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Contract, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Contract. G. Additional Insurance. 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 proper protection and prosecution of the work. 10. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under the Agreement shall be paid to all workmen employed on the work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number 415 - 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him /her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 11. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Labor and Materials Payment Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Agreement and in the form attached hereto as Exhibit C which is incorporated herein by this reference. The Labor and Materials Payment Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. The Contractor shall deliver, concurrently with execution of this Agreement, the Labor and Materials Payment Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the Sate of California. 12. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the work outlined in the Scope of Services provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Contract shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 13. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Contract. Contractor shall not discontinue work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 14. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 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 immediate termination of this Contract by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES All notices, demands, requests or approvals to be given under the terms of this Contract shall be given in writing, to City by Contractor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: City of Newport Beach Attm Recreation Department 3300 Newport Blvd. Newport Beach, CA, 92663 Phone: 949 - 644 -3161 Fax: 949 - 644 -3155 All notices, demands, requests or approvals from CITY to Contractor shall be addressed to Contractor at: Linnert Builders Attn: Bob Linnert 1675 N Shaffer St. Orange CA 92867 Phone /Fax: 714 -974 -4393 16. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Contract at the time and in the manner required, that party shall be deemed in default in the performance of this Contract. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Contract forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Contract at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Contract. 17. COMPLIANCE WITH ALL LAWS Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 18. WAIVER A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 19. INTEGRATED CONTRACT This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 20. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Contract and the Scope of Services, the terms of this Contract shall govern. 21. AMENDMENTS This Contract may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 22. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Contract by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 23. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 24. WARRANTY 24.1 Contractor agrees that the Landscape Structures equipment and Softile KrosLOCK surfacing installed pursuant to this Contract shall be covered by a 10 year materials and workmanship manufacturer warranty, attached as indicated in Exhibit B and which is incorporated in full by this reference. 23.2 Contractor agrees that the Landscape Structures equipment and Softile KrosLOCK surfacing installed pursuant to this Contract fully complies with ASTM, IPEMA and CPSC guidelines and standards for playground safety. 25. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: In LaVonne Harkless, City Clerk Attachment: Item A— Scope of Work Item B — Manufacturer Warranty Item C — Labor and Materials Bond CITY OF NEWPORT BEACH, A Municipal Corporation By: Homer Bludau, City Manager for the City of Newport Beach Linnert Builders Name: � r.. ., � i J�. �� w I � +r�Y ��;:r II a �!� � �GE�! ���� � + ' —_ _ f:1 FEE: �J FROM :Coast Recreation FRX NO. :7146190106 Jan. 09 2007 03:18PM P3 i w U' O O D U N ci Q ± I to o N Z N I w O � (~� N ��8911 I N