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HomeMy WebLinkAboutC-7959-1 - Purchase and Installation Agreement for El Paseo Irrigation Line Installation1� V f` AMENDMENT NO. ONE TO U PURCHASE AND INSTALLATION AGREEMENT WITH PARK WEST LANDSCAPE MAINTENANCE, INC. FOR EL PASEO IRRIGATION LINE INSTALLATION THIS AMENDMENT NO. ONE TO PURCHASE AND INSTALLATION AGREEMENT ("Amendment No. One") is made and entered into as of this 19th day of March, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PARK WEST LANDSCAPE MAINTENANCE, INC., a California corporation ("Contractor"), whose address is 22421 Gilberto, Suite A, Rancho Santa Margarita, CA 92688, and is made with reference to the following: RECITALS A. On August 1, 2020, City and Contractor entered into a Purchase and Installation Agreement ("Agreement") for Contractor to provide installation of irrigation for 32 Coral Trees on EI Paseo Drive and Seadrift Drive, and Bore and install Conduit across street from median and provide bubblers to 32 Coral Trees, as detailed in the Scope of Work and Schedule of Billing Rates attached hereto as Exhibit "A" ("Project"). B. The parties desire to enter into this Amendment No. One to reflect additional services not included in the Agreement, to extend the term of the Agreement to May 31, 2021, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 3 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on May 31, 2021, unless terminated earlier as set forth herein." 2. SCOPE OF WORK Exhibit A to the Agreement shall be supplemented to include the Scope of Work and Schedule of Billing Rates, attached hereto as Exhibit A and incorporated herein by reference. Exhibit A to the Agreement, Exhibit A to this Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Work at its sole discretion. 3. COMPENSATION TO CONTRACTOR Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Contractor for the Services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and Exhibit "A" and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Thirteen Thousand Seven Hundred Thirty Six Dollars and 68/100 ($13,736.68), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Contractor's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Two Thousand Five Hundred Seventy Dollars and 00/100 ($2,570.00). 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Park West Landscape Maintenance, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: i a-( By: J c_Laro C. Harp City A torney ATTEST: Date: Awwvv,ry-X I Brown'Leilani 1. CITY OF NEWPORT BEACH, a California municipal corporation Date: By: ,TV16A@,4 A) Jj David A. Webb Public Works Director CONTRACTOR: PARK WEST LANDSCAPE MAINTENANCE, INC., a California corporation Date: By: Signed in Counterpart James P. Tracy Chief Executive Officer/Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services and Schedule of Billing Rates Park West Landscape Maintenance, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: '_Tc -Aar . Harp City Morney ATTEST: Date: Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David A. Webb Public Works Director CONTRACTOR: PARK WEST LANDSCAPE MAINTENANCE, INC., a California corporation Date:_' , Z6 .. Wiz! By: J es — .racy Chief -Executive Officer/Chief- FiRa=ial Gffice-r 1 [END OF SIGNATURES] Exhibit A - Scope of Services and Schedule of Billing Rates Park West Landscape Maintenance, Inc. Page 3 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES Park West Landscape Maintenance, Inc. Page A-2 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES Irrigation installation — EI Paseo/Seadrift Additional work required to protect Utilities Amendment 1 Scope: Additional 20 square feet of trench work repairs $600.00 Additional labor to excavate around utilities $1,100.00 1 additional dump fee - concrete/asphalt/dirt mixture $350.00 Superior 2 " Master Valve and all related fittings $520.00 TOTAL: $2,570.00 UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF PARK WEST LANDSCAPE MAINTENANCE, INC., a CALIFORNIA CORPORATION IN LIEU OF ANNUAL MEETING FOR CALENDAR YEAR 2020 The Board of Directors of PARK WEST LANDSCAPE MAINTENANCE, INC., a CALIFORNIA corporation, hereby consent to the adoption of the following recitals and resolutions by written consent. Election of Officers RESOLVED, that the following individuals are hereby elected to the offices set forth opposite their respective names to serve at the pleasure of the Board of Directors of the Corporation for the current year and until their successors are duly elected and qualified, unless such individual resigns, is removed from office or is otherwise disqualified from serving as an officer of the Corporation: Dustin Kemmerer President Brian Riggs Executive Vice -President Finance & Administration James P. Tracy Chief Executive Officer, Secretary, Treasurer Bart Ryder Vice -President Ratification of Prior Acts RESOLVED, that all prior acts and actions taken by the officers of the Corporation, whether or not such actions were specifically authorized at a duly held meeting, either regular or special, of either the Board of Directors or the shareholders of the Corporation, and whether or not recorded in the Minute Book of the Corporation, including, without limitation, all purchases, contracts, contributions, compensations, acts, decisions, proceedings, elections and appointments since the filing of the Articles of Incorporation, are specifically ratified and approved and the results, consequences and benefits of such acts and actions are specifically accepted by the present directors of the Corporation. Other Business 1. The Board of Directors have voted to authorize acting Branch Managers to be authorized and empowered to bind the Corporation in connection with the activities of their respective Branch Office. Further Authorization RESOLVED, that the officers of the Corporation are hereby severally authorized to (a) sign, execute, certify to, verify, acknowledge, deliver, accept, file and record any and all instruments and documents related to the transactions and documents authorized by the foregoing resolutions, and (b) take, or cause to be taken, any and all such action in the name and on behalf of the Corporation as are in such officer's sole discretion necessary or advisable and in the best interest of the Corporation in order to consummate the transactions contemplated by, or otherwise to effect the purposes of, the foregoing resolutions and recitals; RESOLVED, that any and all acts of the officers of the Corporation in connection with the transactions referred to in the preceding resolutions and recitals are hereby in each respect ratified, confirmed, and adopted and approved as the acts of the Corporation; RESOLVED, that the Secretary or any other officer of the Corporation be, and each of them hereby is, authorized to attest or witness the execution of any document authorized by the foregoing resolutions and to sign and affix the Corporation's seal to certificates and such other documents and instruments as may be necessary or appropriate; and RESOLVED, that the powers and duties herein prescribed be of continuing force and effect and all persons may rely on same until the Board of Directors of the Corporation shall by further resolution direct otherwise. The undersigned direct that this Unanimous Written Consent of the Directors be filed with the Minutes of the proceedings of the Board of Directors of the Corporation, IN WITNESS WHEREOF, the undersigned being the duly elected and acting Directors of the Corporation have executed this Unanimous Written Consent. , Jammees/ P. Tracy Thomas K. T1racv Dustin Kemmerer PURCHASE AND INSTALLATION AGREEMENT WITH PARK WEST LANDSCAPE MAINTENANCE, INC. v FOR EL PASEO IRRIGATION LINE INSTALLATION THIS PURCHASE AND INSTALLATION AGREEMENT ("Agreement") is made and entered into as of this 1St day of August, 2020 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PARK WEST LANDSCAPE MAINTENANCE, INC., a California corporation ("Contractor"), whose principal place of business is 22421 Gilberto, Suite A, Rancho Santa Margarita, CA 92688, 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 desires to engage Contractor to provide installation of irrigation for 32 Coral Trees on EI Paseo Drive and Seadrift Drive, and Bore and install Conduit across street from median and provide bubblers to 32 Coral Trees, as detailed in the Scope of Work and Schedule of Billing Rates attached hereto as Exhibit "A" ("Project"). C. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SCOPE OF WORK 1.1 Contractor shall provide all tangible items and perform all the services described in the Scope of Work attached hereto as Exhibit "A" and incorporated herein by 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 will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used under reasonably competent practitioners of the same discipline under similar circumstances and that all materials will be of good quality. Park West Landscape Maintenance, Inc. Page 1 1.2 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. 1.3 In consideration of the payment of the purchase price and subject to all the terms and conditions hereof, Contractor shall: Install irrigation to 32 Coral trees on EI Paseo Drive and Seadrift Drive. Bore and install Conduit across street from median and provide bubblers to 32 Coral Trees. (hereinafter referred to as "Products"), as listed and set forth in the Scope of Work attached hereto as Exhibit "A" and incorporated in full by this reference. 2. TIME OF PERFORMANCE 2.1 Time is of the essence in the performance of services under this Agreement and Contractor shall complete the Project installation, implementation and acceptance testing within the time set forth in Exhibit "A". The failure by Contractor to meet this schedule may result in termination of this Agreement by City as outlined in Section 18 below. 2.2 Force Majeure. The time period(s) specified in Exhibit "A" for performance of services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including but not restricted to acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, and/or acts of any governmental agency, including the City, if Contractor shall within ten (10) days of the commencement of such delay notify City in writing of the cause of the delay. City shall ascertain the facts and extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3. TERM Unless earlier terminated in accordance with Section 18 of this Agreement, this Agreement shall continue in full force and effect until completion of the services agreed to herein or until March 31, 2021, whichever occurs first. 4. COMPENSATION 4.1 City shall pay Contractor for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and Exhibit "A" and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Eleven Thousand One Hundred Sixteen Dollars and 68/100 ($11,116.68), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. Park West Landscape Maintenance, Inc. Page 2 4.2 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit "A" to this Agreement or specifically approved in writing in advance by City. 4.4 Contractor shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit "A". 4.5 Contractor shall provide City with a minimum fourteen (14) days' notice of its dates of installation to enable the City to prepare the installation sites for the Products in accordance with the instructions of Contractor. The City shall complete site preparation prior to the date of installation of the Products, and the site shall thereafter be available for inspection and approval. All costs and expenses related to the site preparation shall be at the sole expense of City. 4.6 Extra Work. Contractor shall not receive any compensation for Extra Work without the prior written authorization of the City. As used herein, "Extra Work" means any work that is determined by the City to be necessary for the proper completion of the Project, but which is not included in the Purchase Price as specified in Exhibit "A", and which parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the hourly rates set forth in Exhibit "A". 5. PROJECT MANAGER Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the term of the Agreement. Contractor has designated James P. Tracy to be its Project Manager. Contractor shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. Park West Landscape Maintenance, Inc. Page 3 7. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 7.1 Contractor shall use only the standard materials described in Exhibit "A" in performing services under this Agreement. Any deviation from the materials described in Exhibit "A" shall not be installed unless approved in advance by the City Project Administrator. 7.2 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 Agreement, 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. 8. RESPONSIBILITY FOR DAMAGES OR INJURY 8.1 City and all officers, employees and representatives thereof and all persons and entities owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services 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 and/or Services by Contractor, or its subcontractors, or its workers, or anyone employed by either of them, unless caused by the City's negligent acts, omissions, or willful misconduct. 8.2 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 to the extent arising from the negligent acts, omissions, or willful misconduct of the Contractor' or any subcontractor or supplier selected by the Contractor. 8.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council. Boards and commissions, officers, agents, volunteers, employees, and any person or entity owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties") from and against: (1) any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liability, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, and Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers. Agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable Park West Landscape Maintenance, Inc. Page 4 or any or all of them), (2) use of improper materials in performing this Project including, without limitation, defects in workmanship or materials and/or design defects-, and/or (3) any and all claims asserted by Contractor's subcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. Contractor's liability in this Subsection shall be limited to the maximum amount of its insurance coverage for claims arising out non -negligent and non -intentional acts performed under this Agreement. Contractor shall not be held responsible for consequential or special damages, or claims made to City for such consequential or special damages. Nothing herein shall require Contractor to indemnify City from the negligence or willful misconduct of City, its officers or employees. 8.4 Intellectual Property Indemnity - Contractor shall defend, indemnify and hold City, its agents, officers, representatives, employees and City Council, boards and commissions harmless from any proceeding brought against City for any intentional or unintentional violation of the intellectual property rights of any third party with respect to Products deliverables purchased in this Agreement This indemnification shall include, but is not limited to, infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Contractor's deliverables provided under this Agreement. 8.5 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 perform work as specified in Exhibit "A" to limit impacts to traffic during the system installation period. Contractor shall be liable for any private or public property damaged during the performance of the Project work. 8.6 Contractor shall provide traffic control and access in accordance with Section 7-10 of the State Standard Specifications and the latest edition of the Work Area Traffic Control Handbook (WATCH), as published by Building News, Inc. 8.7 Traffic control and detours shall at a minimum meet the following requirements: 8.7.1 Emergency vehicle access shall be maintained at all times. 8.7.2 The locations and wordings of all barricades, signs, delineators, lights, warning devices, parking restrictions, and any other required details shall ensure that all pedestrian and vehicular traffic will be handled in a safe manner with a minimum of inconvenience to the public. 8.7.3 All advanced warning sign installations shall be reflectorized and/or lighted. 8.7.4 Traffic signal system shutdown or planned "red flash" shall be limited to 4 -hour periods between the hours of 9:00 a.m. and 3:00 p.m. on weekdays (Monday through Thursday), except as authorized by the Project Administrator. Park West Landscape Maintenance, Inc. Page 5 8.7.5 "STOP AHEAD" and "STOP" signs shall be furnished by the Contractor and shall conform to the provisions in Section 12-3.06, "Construction Area Signs," of the State Standard Specifications except that the base material for the signs shall not be plywood. Two "STOP AHEAD" signs and two "STOP" signs shall be placed for each direction of traffic. Locations of the signs shall be per the WATCH manual. 8.8 Nothing in this Section shall be construed as authorizing any award of attorney's fees in any action to enforce the terms of this Agreement, except to the extent provided in Section 8.3 above. 8.9 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 9. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees, nor any of its subcontractors, are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 10. 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. 11. 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 Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. 12. PREVAILING WAGES 13.1 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 Park West Landscape Maintenance, Inc. Page 6 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. 13.2 Unless otherwise exempt by law, Contractor warrants that no contractor or subcontractor was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Contractor further warrants that it is currently registered and qualified to perform "public work" pursuant to California Labor Code section 1725.5 or any successor statute thereto and that no contractor or subcontractor will engage in the performance of the Services unless currently registered and qualified to perform public work. 13. SUBCONTRACTING The subcontractors authorized by City, if any, to perform work on this Project are identified in Exhibit "A". Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any 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. City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 14. 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 Agreement. 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. 15. CONFLICTS OF INTEREST 15.1 The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. Park West Landscape Maintenance, Inc. Page 7 15.2 If subject to the Act and/or Government Code §§ 1090 et seq., Contractor shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 16. NOTICES 16.1 All notices, demands, requests or approvals to be given under the terms of this Agreement 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: Attention: Public Works Director City of Newport Beach 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658 16.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: James P. Tracy Park West Landscape Maintenance, Inc. 22421 Gilberto, Suite A Rancho Santa Margarita, CA 92688 17. TERMINATION 17.1 Termination With Cause - In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of five (5) calendar days, or if more than five (5) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within five (5) 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 Agreement forthwith by giving to the defaulting party written notice thereof. 17.2 Termination Without Cause. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement 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 in the performance of such services up to the effective date of termination for which Contractor has not previously been paid. In the event of termination under this Park West Landscape Maintenance, Inc. Page 8 Section, City shall also pay Contractor for all Products, associated materials, and hardware delivered to City site under this Agreement that City deems usable. 18. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement by Contractor is a representation that Contractor has visited the Project site(s), 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. 19. WARRANTY 19.1 Contractor warrants to City that all Products to be delivered hereunder will be free from defects in material or workmanship and will be of the kind and quality designated or specified by Contractor in Exhibit "A". The warranty shall apply only to defects appearing within two years from the date of final acceptance by City for hardware products not manufactured by the Contractor, and two years from the date of final acceptance by City for hardware products manufactured by Contractor. If Contractor installs the Products and associated hardware and materials, or supplies technical directions of installation by Agreement, the warranty period shall run from the date of final acceptance of installation by City, provided same is not unreasonably delayed by City. 19.2 If Contractor -manufactured equipment delivered hereunder does not meet the above warranty, and if City promptly notifies Contractor in writing, Contractor shall thereupon correct any defect, including non-conformance with the specifications, either (at its option) by repairing any defective or damaged parts of the equipment, or by making available any necessary replacement parts, delivered and installed without additional charge to City within seven (7) working days. City will return the defective product to Contractor, at Contractor's expense. Contractor shall repair or replace the defective item and return it to City, shipping costs prepaid. Contractor shall perform any necessary testing, hardware and equipment removal, repair, replacement, certification, and installation at no cost to the City during the warranty period, using Contractor's equipment. 19.3 The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. Contractor does not warrant any equipment of other manufacture designated by City. 20. REPRESENTATIONS 20.1 Non -infringement. Contractor represents that to the best of its knowledge the technology embodied in the products sold herein does not infringe upon a United States patent or United States copyright in effect as of the Effective Date. 20.2 Authorily. Each party represents as follows: (a) that it has full power and authority to execute, deliver and perform its obligations under this Agreement; (b) that there are no actions, proceedings or investigations, pending or, to the best of each party's knowledge, threatened against such party which may in any manner whatsoever materially affect the enforceability of this Agreement or the rights, duties and obligations of the parties Park West Landscape Maintenance, Inc. Page 9 hereunder; and (c) that the execution, delivery and performance of this Agreement will not constitute a breach or default under any agreement, law or court order under which such party is a party or may be bound or affected by or which may affect the rights, duties and obligations hereunder. 20.3 No Other Representations. Each party acknowledges and agrees that it is relying on no representation of the other party except as expressly set forth herein. 21. CONFIDENTIAL INFORMATION. 21.1 Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and data identified in writing as proprietary or confidential by either party ("Confidential Information") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party's exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City's duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California. 21.2 Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction. 21.3 Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Section, and that monetary damages may be inadequate to compensate either party for such breach. Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Section. 22. ASSIGNMENT This Agreement shall not be assigned by any party, or any party substituted, without prior written consent of the City and the Contractor. Park West Landscape Maintenance, Inc. Page 10 23. STANDARD PROVISIONS 23.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 23.2 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. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 23.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 23.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 23.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 23.6 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. 23.7 Amendments. This Agreement 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. 23.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 23.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 23.10 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. Park West Landscape Maintenance, Inc. Page 11 23.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 23.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Park West Landscape Maintenance, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date.- By:--Z ate:By: Aaron C. Harp o City Attorney o�O�,L ATTEST: MI. Date: ;11�z_ By: /► �W -J' &4�1 BrownCity Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: r�', `, �.� , By: 101AXi_ I�... David A. Wel3b Public Works Director CONTRACTOR: PARK WEST LANDSCAPE MAINTENANCE, INC., a California corporation Date - Signed in Counterpart By: James P. Tracy Chief Executive Officer/ Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates Exhibit B — Insurance Requirements fi "--i�fid€9f �`YH,4.•.. �mwv.---.—x=N.4:kFIY%:.R%64SWd6SX3�+2iti:eriYe315Y e4N3YM�Y:KWSm'sW,T.S\'OriN+'�1:XLEAi!6±t�G:R'dd3tY`iT�4'3t .,Irt.-�`h%YVS_ ori:+x. _�_':wL�sYYB�.J'Yffi2Y��.AtisA Park West Landscape Maintenance, Inc. Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:__ 7.,ra Z<D __.. CITY OF NEWPORT BEACH, a California municipal corporation Date: --- --- — - f; By--- —-- =--- By ------------- -- Aaron C. Harp David A. Webb City Attorney ovq' v Public Works Director ATTEST: Date: By: Leilani I. Brown City Clerk Attachments CONTRACTOR: PARK WEST LANDSCAPE MAINTENANCE, INC., a California c rpor tion Date- By: ate:.---I✓�v2vi. --- By -------- --- ---- -- James P. Tracy Chief Executive Officer/ Chief Financial Officer [END OF SIGNATURES] Exhibit A — Scope of Services and Schedule of Billing Rates Exhibit B -- Insurance Requirements Perk West Landscape Maintenance, Inc,. Page 13 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES Irrigation Installation - EI Paseo/Seadrift Contractor shall install irrigation for 32 Coral trees on EI Paseo Drive and Seadrift Drive. Bore and install Conduit across street from median and provide bubblers to 32 Coral Trees. Work to be done per Encroachment and Landscape Maintenance Agreement EPN2005- 0486. FEE SCHEDULE Boring Equipment and conduit installation $ 6,250.00 $ 6,250.00 40 4" conduit $ 5.05 $ 202.00 16 Irrigation Labor technician $ 49.57 $ 793.12 16 Landscape maintenance labor $ 38.55 $ 616.80 16 Landscape maintenance labor -to remove iceplant $ 38.55 $ 616.80 16 Landscape maintenance labor -to remove iceplant $ 38.55 $ 616.80 2 1.5" Rainbird valves $ 328.56 $ 657.12 2 Valve boxes $ 33.04 $ 66.08 100 ft of 14 ga. Direct burial wire $ 0.20 $ 20.00 150 ft. of 1.5 inch Sch 40 Pipe $ 0.55 $ 82.50 1000 ft. of 1 inch sch 40 pipe $ 0.45 $ 450.00 1100 ft. of 3/4 inch sch 40 pipe $ 0.35 $ 385.00 800 ft. of 1/2 inch sch 40 pipe $ 0.25 $ 200.00 32 Bubbler nozzle $ 2.05 $ 65.60 32 sch 40 Fittings and sch 80 Nipples $ 1.48 $ 47.36 50 Rebar $ 1.95 $ 97.50 Total $ 11,166.68 Park West Landscape Maintenance, Inc. Page A-1 EXHIBIT B INSURANCE REQUIREMENTS Provision of 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 Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. 2. 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. 3. Coverage Requirements. A. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Park West Landscape Maintenance, Inc. Page B-1 Agreement, 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 each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of Park West Landscape Maintenance, Inc. Page B-2 insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. D. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance If Contractor or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Contractor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's Park West Landscape Maintenance, Inc. Page B-3 performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Contractor's 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. Park West Landscape Maintenance, Inc. Page B-4 From: Customer Service To: Reyes, Raymund; Insurance Cc: sayar(ohebix.com Subject: Compliance Alert -Vendor Number FV00000249 Date: Wednesday, December 09, 2020 5:47:56 PM [EXTERNAL EMAIL I DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. This Account has mored from non-compliant to COMPLIANT status and is currently in compliance for certificate of insurance requirements. FV00000249 Park Nest Landscape Maintenance; Inc. Sent by Ebix. designated insurance certificate reviewer for the Cit) ° of Newport Beach.