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.
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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.
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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
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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.
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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.