HomeMy WebLinkAboutC-3916 - Contract for Installation of Playground Equipment at Mariners Park and Surfacing at Mariners Park and Peninsula ParkContract with Linnert Builders
For Installation of Playground equipment at Mariners Park
and Surfacing at Mariners Park and Peninsula Park
THIS CONTRACT is made and entered into as of this 21 day ofte . 2007, by-and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Linnert
Builders, whose principal place of business is 1675 N Shaffer St, Orange CA 92867
( "Contractor"), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the
State of California with the power to carry on its business as it is now being conducted
under the statutes of the State of California and the Charter of City.
B. City is planning to install new playground equipment at Mariners Park and surfacing at
Mariners Park and Peninsula Parks ( "playground installation ").
C. The Playground equipment was manufactured by Landscape Structures, Inc. The
equipment includes a PlayBooster 5-12 Playstructure (Model No. 5374- 1 -3-1), a
Independent Orbiter -3 (Model No. 154359A) and a Learning Wall (Model No. 5374- 1 -3-2)
(hermafter the "Equipment ")
D. City desires to engage Contractor to remove old playground, install new equipment
Provided by the City and construct a new 24' pit. Additionally City desires to engage
Contractor to install play surfacing at Mariners and Peninsula Parks. Contractor has
agreed to perform the Project over a two week period, commencing on Date to be mutually
agreed upon by Contractor and City. Work shall be completed within 14 days of
commencement.
E. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications (Exhibit A) set forth by the City for the Project, and is familiar
with all conditions relevant to the performance of services and has committed to perform
all work required for the price specified in this Contract.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1.
SCOPE OF WORK
Contractor shall perform all the services described in the Scope of Work attached hereto
as Exhibit A and incorporated herein by this reference. As a material inducement to the
City entering into this Agreement, Contractor represents and warrants that Contractor is a
provider of first class work and services and Contractor is experienced in performing the
work and services contemplated herein and, in light of such status and experience,
Contractor covenants that it shall follow the highest professional standards in performing
the work and services required hereunder and that all materials will be of good quality.
For purposes of this Agreement, the phrase "highest professional standards" shall mean
those standards of practice recognized by one or more first -class firms performing similar
work under similar circumstances.
Contractor shall perform everything required to be performed, and shall provide and
furnish all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project.
2. TIME OF PERFORMANCE
Contractor shall come the Work within the time set forth in Section D. The failure by
Contractor to meet this deadline may result in termination of this Contract by City and
assessment of damages as outlined in Section 2.1.
2.1 The parties agree that it is extremely difficulhand impractical to determine and fix the
actual damages that City will sustain should the Contractor fail to complete the
Project within the time allowed. Should Contractor fail to complete the work called
for in this Contract on the date outlined above, Contractor agrees to the deduction of
liquidated damages In the sum of Fifty Dollars ($50) for each calendar day beyond
the date scheduled for completion provided in Section 2 of this Agreement assuming
that the Contractor has access to the space on (tbd) as described herein.
_ Execution of this Agreement shall constitute agreement by the City and Contractor
that Fifty Dollars ($50) per calendar day is the minimum value of the costs and
actual damage caused by the failure of the Contractor to complete the work within
the allotted time. Such sum is liquidated damages and shall not be construed as a
penalty, and may be deducted from payments due the Contractor if such delay
occurs.
3. COMPENSATION
As full compensation for the performance and completion of the Project as required by the
Scope of Work, City shall pay to Contractor and Contractor accepts as full payment the
sum of fifty five thousand three hundred and thirty-five dollars and 001100 ($56,335.00).
Contractor shall not receive any additional compensation unless approved in advance by
the City in writing. Contractor will be paid upon successful completion of the project
4, ADMINISTRATION
This Contract will be administered by the Recreation & Senior Services Department. Sean
Levin shall be the Project Administrator and shall have the authority to act for City under
this Contract. The Project Administrator or His/her authorized representative shall
represent City in all matters pertaining to the services to be rendered pursuant to this
Contract.
5. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
5.1 Contractor shall use only the equipment described in Exhibit A in performing
Contract Services. Any deviation from the design or equipment described in Exhibit
A shall not be installed unless approved In advance by the City Administrator.
5.2 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to
perform the services required by this Contract, and that it will perform all services In
a manner commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not employed by City,
nor have any contractual relationship with City.
6. RESPONSIBILITY FOR DAMAGES OR INJURY
6.1 City and all officers, employees and representatives thereof shall not be responsible
in any manner for any loss or damage to any of the materials or other things used or
employed in performing the Project or for injury to or death of any person as a result
of Contractor's performance of the services required hereunder, or for damage to
property from any cause arising from the performance of the Project by Contractor,
or its suboonoontractors, or its workers, or anyone employed by either of them.
6.2 Contractor shall be responsible for any liability imposed by law and for injuries to or
death of any person or damage to property resulting from defects, obstructions or
from any cause arising from Contractors work on the Project, or the work of any
subcontractor or supplier selected by the Contractor.
6.3 Contractor shall indemnify, hold harmless, and defend City, its officers and
employees from and against: (1) any and all loss, damages, liability, claims,
allegations of liability, suits, costs and expenses for damages of any nature
whatsoever, including, but not limited to, bodily injury, death, personal injury,
property damage, or any other claims arising from any and all acts or omissions of
Contractor, its employees, agents or subcontractors in the performance of services
or work conducted or performed pursuant to this Contract; (2) use of improper
materials in performing this Project; Including, without limitation, defects in
workmanship or materials and/or design defects or (3) any and all claims asserted by
Contractors subconcontractors or suppliers on the Project, and shall include
reasonable attorneys' fees and all other costs incurred in defending any such claim.
However, nothing herein shall require Contractor to indemnify City from the sole
negligence or willful misconduct of City, ffs officers or employees.
6.4 Contractor shall perform all Project work in a manner to minimize public inconvenience
and possible hazard, to restore other work areas to their original condition and former
usefulness as soon as possible, and to protect public and private property. Contractor
shall be liable for any private or public property damaged during the performance of the
Project work.
6.5 To the extent authorized by law, as much of the money due Contractor under and by
virtue of the Contract as shall be considered necessary by City may be retained by it
until disposition has been made of such suits or claims for damages as aforesaid.
6.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in
any action to enforce the terms of this Contract, except to the extent provided in Section
6.3 above.
6.7 The rights and obligations set forth in this Section shall survive the temrination of this
Contract.
7. INDEPENDENT CONTRACTOR
City has retained Contractor as an independent contractor and neither Contractor nor its
employees are to be considered employees of the City. The manner and means of
conducting the work are under the control of Contractor, except to the extent they are
limited by statute, rule or regulation and the express terms of this Contract No civil
service status or other right of employment shall accrue to Contractor or its employees.
S. 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 ProjecL
9. INSURANCE
Without limiting Contractors indemnification of City, and prior to commencement of work.
Contractor shall obtain, provide and maintain at its own expense during the term of this
Contract, a policy or policies of liability insurance of the type and amounts described below
and in a form satisfactory to City.
A. Certificates ofurance. Contractor shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required herein.
Insurance certificates must be approved by City's Risk Manager prior to
commencement of performance or issuance of any permit. Current certification of
insurance shall be kept on file with City's at all times during the term of this Contract.
B. ,Sh" nature. A person authorized by the insurer to bind coverage on its behalf shall
sign certification of all required policies.
C. Acceotable In All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A (or
Higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's
Risk Manager.
D. Coverage &gurrements.
L Workers' Compensation Coverage. Contractor shall maintain Workers'
Compensation Insurance and Employer's Liability Insurance for his or her
employees in accordance with the laws of the State of California, In addition,
Contractor shall require each subcontractor to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's employees. Any
notice of cancellation or non- renewal of all Workers' Compensation policies must
be received by City at least thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents, employees and
volunteers for losses arising from work performed by Contractor for City.
H. General Liability Covera ge. Contractor shall maintain commercial general liability
insurance in an amount not less Phan one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury, and property damage, including
without limitation, contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general aggregate
limit shall apply separately to the work to be performed under this Contract, or
the general aggregate limit shall be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance
covering bodily injury and property damage for all activities of the Contractor
arising out of or in connection with work to be performed under this Contract,
including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than one million dollars ($1,000,000) combined single limit for
each occurrence.
E. Endorsements Each general liability and automobile liability insurance policy shall
be endorsed with the following speck language:
L The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insureds with respect to liability arising
out of work performed by or on behalf of the Contractor.
ii. This policy shall be considered primary insurance as respects to City, Its elected
or appointed officers, officials, employees, agents and volunteers as respects to
all claims, losses, or liability arising directly or indirectly from the Contractor's
operations or services provided to City. Any insurance maintained by City,
including any self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided hereunder.
iii. This insurance shall act for each insured and additioninsured as though a
separate policy had been written for each, except with respect to the limits of
liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected or appointed
officers, officials, employees, agents and volunteers.
v. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to City, its elected or appointed officers, officials, employees,
agents or volunteers.
vi. The insurance provided by this policy shall not be suspended, voided, canceled,
or reduced in coverage or in limits, by either party except after thirty (30)
calendar days (10 calendar days written notice of non - payment of premium)
written notice has been received by City.
F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim
made or suit instituted arising out of or resulting from Contractor's performance
under this Contract
G. Additional insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
10. PREVAILING WAGES
Pursuant to the applicable provisions of the labor Code of the State of California, not
less than the general prevailing rate of per diem wages including legal holidays and
overtime work for each craft or type of workman needed to execute the work
contemplated under the Agreement shall be paid to all workmen employed on the
work to be done according to the Agreement by the Contractor and any
subcontractor. In accordance with the California Labor Code (Sections 1770 at seq.),
the Director of Industrial Relations has ascertained the general prevailing rate of per
diem wages in the locality in which the work is to be performed for each craft,
classification, or type of workman or mechanic needed to execute the Agreement. A
copy of said determination is available by calling the prevailing wage hotline number
415 - 703 -4774, and requesting one from the Department of Industrial Relations. The
Contractor is required to obtain the wage determinations from the Department of
Industrial Relations and post at the job site the prevailing rate or per diem wages. It
shall be the obligation of the Contractor or any subcontractor under him/her to comply
with all State of California labor laws, rules and regulations and the parties agree that
the City shall not be liable for any violation thereof.
11. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term of this
Contract: a Labor and Materials Payment Bond in the amount of one hundred percent
(100%) of the total amount to be paid Contractor as set forth in this Agreement and in the
form attached hereto as Exhibit C which is incorporated herein by this reference.
The Labor and Materials Payment Bond shall be issued by an insurance organization or
surety (1) currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, (2) listed as an acceptable surety in the latest revision of
the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of flaffl
Key Rating Guide: Property- Casuatty.
The Contractor shall deliver, concurrently with execution of this Agreement, the Labor and
Materials Payment Bond, a certified copy of the "Certificate of Authority' of the Insurer or
Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to
transact surety insurance in the Sate of California.
12. SUBCONTRACTING
City and Contractor agree that subcontractors may be used to complete the work outlined
in the Scope of Services provided the Contractor obtains City approval prior to the
subcontractor performing any work. Contractor shall be fully responsible to City for all acts
and omissions of the subcontractors. Nothing in this Contract shall create any contractual
relationship between C 1y, and subcontractor nor shall it create any obligation on the part of
City to pay or to see to the payment of any monies due to any such subcontractor other
than as otherwise required by law.
13. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to constitute
a failure to pay according to the terms of this Contract. Contractor shall not discontinue
work as a result of such withholding. Contractor shall have an immediate right to appeal to
the City Manager or his/her designee with respect to such disputed sums. Contractor shall
be entitled to receive interest on any withheld sums at the rate of return that City earned
on its investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
14. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the California Political
Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial
interest that may foreseeably be materially affected by the work performed under this
Contract, and (2) prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do
so constitutes a material breach and is grounds for immediate termination of this Contract
by City. Contractor shall indemnify and hold harmless City for any and all claims for
damages resulting from Contractor's violation of this Section.
15. NOTICES
All notices, demands, requests or approvals to be given under the terms of this Contract shall
be given in writing, to City by Contractor and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United States
mall, postage prepaid, first -class mail, addressed as hereinafter provided. All notioes,
demands, requests or approvals from Contractor to City shall be addressed to CRY at:
City of Newport Beach
Attn: Recreation Department
3300 Newport Blvd.
Newport Beach, CA, 92663
Phone: 94944 -3161
Fax: 949 - 644 -3155
All notices, demands, requests or approvals from CITY to Contractor shall be addressed to
Contractor at:
Linnert Builders
Attn: Bob Linnert
1675 N Shaffer St.
Orange CA 92867
Phone /Fax: 714 -974 -4393
16. TERMINATION •
•
In the event that either party fails or refuses to perform any of the provisions of this
Contract at the time and in the manner required, that party shall be deemed in default in
the perfonnancq, of this Contract. If such default is not cured within a period of two (2)
calendar days, or if more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due performance
within two (2) calendar days after receipt of written notice of default, specifying the nature
of such default and the steps necessary to cure such default, the non - defaulting party may
terminate the Contract forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Contract at any time by giving seven (7) calendar days
prior written notice to Contractor. In the event of termination under this Section, City shall
pay Contractor for services satisfactorily performed and costs incurred up to the effective
date of termination for which Contractor has not been previously paid. On the effective
date of termination, Contractor shall deliver to City all materials purchased in performance
of this Contract.
17. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations
and requirements of all governmental entities, including federal, state, county or municipal,
whether now in force or hereinafter enacted.
18. WAIVER
A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, covenant or
condition.
19. INTEGRATED CONTRACT
This Contract represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and Contracts of
whatsoever kind or nature are merged herein. No verbal Contract or implied covenant
shall be held to vary the provisions herein.
20. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Contract and the
Scope of Services, the terms of this Contract shall govern.
21. AMENDMENTS
This Contract may be modified or amended only by a written document executed by both
Contractor and City and approved as to form by the City Attorney.
22. EFFECT OF CONTRACTOR'S EXECUTION
Execution of this Contract by Contractor is a representation that Contractor has visited the
Project Site, has become famiffer with the local conditions under which the work is to be
Performed, and has taken into consideration these factors in submitting its Project
Proposal and Scope of Work.
23. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Contract and all matters relating to it
and any action brought relating to this Contract shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
24. WARRANTY • •
24.1 Contractor agrees that the Landscape Structures equipment and Softile KrosLOCK
surfacing installed pursuant to this Contract shall be covered by a 10 year materials
and workmanship manufacturer warranty, attached as indicated in Exhibit B and
which is incorporated in full by this reference.
23.2 Contractor agrees that the Landscape Structures equipment and Softile KrosLOCK
surfacing installed pursuant to this Contract fully complies with ASTM, IPEMA and
CPSC guidelines and standards for playground safety.
25. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason
of the authorship of the Agreement or any other rule of construction which might
otherwise apply.
IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the day and
year first written above.
APPROVED AS TO FORM:
Aardn C. Harp,
Assistant City Attorney �� NE
for the City of Newport Beach
J
City Clerk
Attachrnent: Item A- Scope of Work
Item B - Manufacturer Warranty
Item C - Labor and Materials Bond
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: C4—" Aw "
H er Bludau, City Manager
for the City of Newport Beach
Linne"ullders
By
G.
Name: /
S� IG0��1ii�
• cm rr orrr°O iW
CITY OF NEWPORT BEACH FED
• CITY COUNCIL STAFF REPORT
Age da em No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Recreation & Senior Services Department
Wes Morgan, Director — 949 -644 -3157 — wmorgan@citv.newport- beach.ca.us
SUBJECT: Contract with Linnert Builders to complete the Mariners Park Playground
and Surfacing Project
Approve contract with Linnert Builders to perform the attached scope of work at
Mariners Park.
DISCUSSION
Four playground installers (Linnert Builders, Fleming Environmental, Park Specialties
and TD Grogan) were contacted and attended a pre -bid meeting at Mariners Park on
January 17, 2007. One bid was received from Linnert Builders.
•The bid from Linnert Builders and the already purchased playground equipment does
not exceed the $120,000 budgeted in account 7251- C4120908 in current FY 2007.
Funds for this project are from the 2002 Roberti Z'Berg Hams Resource Bond Act grant
funds.
•
Scope of work with Linnert Builders includes:
• Demolition and removal of existing play equipment
• Installation of new play equipment
• Relocation of the existing Sea Lion
• Excavate and install a new 2 -5 year old play area (452 sq ft)
• Furnish asphalt sub -base for protective surface
• Installation of Softile safety surfacing
Attachment: A. Linnert Builders Contract
B. Site Map
Services Director
• Contract with Linnert Builders 0
For Installation of Playground equipment at Mariners Park
and Surfacing at Mariners Park and Peninsula Park
THIS CONTRACT is made and entered into as of this day of 2007, by-and •
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and Linnert
Builders, whose principal place of business is 1675 N Shaffer St, Orange CA 92867
( "Contractor'), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the
State of California with the power to carry on its business as it is now being conducted
under the statutes of the State of California and the Charter of City.
B. City is planning to install new playground equipment at Mariners Park and surfacing at
Mariners Park and Peninsula Parks ( "playground installation ").
C. The Playground equipment was manufactured by Landscape Structures, Inc. The
equipment includes a PlayBooster 5 -12 Playstructure (Model No. 5374- 1 -3-1), a.
Independent Orbiter -3 (Model No. 154359A) and a Learning Wail (Model No. 5374- 1 -3 -2)
(herinafter the "Equipment")
D. City desires to engage Contractor to remove old playground, install new equipment
provided by the City and construct a new 24' pit. Additionally City desires to engage
Contractor to install play surfacing at Mariners and Peninsula Parks. Contractor has
agreed to perform the Project over a two week period, commencing on Date to be mutually
agreed upon by Contractor and City. Work shall be completed within 14 days of •
commencement.
E. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications (Exhibit A) set forth by the City for the Project, and is familiar
with all conditions relevant to the performance of services and has committed to perform
all work required for the price specified in this Contract.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
SCOPE OF WORK
Contractor shall perform all the services described in the Scope of Work attached hereto
as Exhibit A and incorporated herein by this reference. As a material inducement to the
City entering into this Agreement, Contractor represents and warrants that Contractor is a
provider of first class work and services and Contractor is experienced in performing the
work and services contemplated herein . and, in light of such status and experience,
Contractor covenants that it shall follow the highest professional standards in performing
the work and services required hereunder and that all materials will be of good quality.
For purposes of this Agreement, the phrase "highest professional standards" shall mean
those standards of practice recognized by one or more first -class firms performing similar
work under similar circumstances.
Contractor shall perform everything required to be performed, and shall provide and
furnish all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project. •
2. TIME OF PERFORMANCE
Contractor shall comple the Work within the time set forth in Section D. The failure by
Contractor to meet this deadline may result in termination of this Contract by City and
assessment of damages as outlined in Section 2.1.
• 2.1 The parties agree that it is extremely difficult-and impractical to determine and fix the
actual damages that City will sustain should the Contractor fail to complete the
Project within the time allowed. Should Contractor fail to complete the work called
for in this Contract on the date outlined above, Contractor agrees to the deduction of
liquidated damages in the sum of Fifty Dollars ($50) for each calendar day beyond
the date scheduled for completion provided in Section 2 of this Agreement assuming
that the Contractor has access to the space on (tbd) as described herein.
Execution of this Agreement shall constitute agreement by the City and Contractor
that Fifty Dollars ($50) per calendar day is the minimum value of the costs and
actual damage caused by the failure of the Contractor to complete the work within
the allotted time. Such sum is liquidated damages and shall not be construed as a
penalty, and may be deducted from payments due the Contractor if such delay
occurs.
3. COMPENSATION
As full compensation for the performance and completion of the Project as required by the
Scope of Work, City shall pay to Contractor and Contractor accepts as full payment the
sum of fifty five thousand three hundred and thirty-five dollars and 00/100 ($55,335.00).
Contractor shall not receive any additional compensation unless approved in advance by
the City in writing. Contractor will be paid upon successful completion of the project.
4. ADMINISTRATION
• This Contract will be administered by the Recreation & Senior Services Department. Sean
Levin shall be the Project Administrator and shall have the authority to act for City under
this Contract. The Project Administrator or his/her authorized representative shall
represent City in all matters pertaining to the services to be rendered pursuant to this
Contract.
5. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE
5.1 Contractor shall use only the equipment described in Exhibit A in performing
Contract Services. Any deviation from the design or equipment described in Exhibit
A shall not be installed unless approved in advance by the City Administrator.
5.2 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to
perform the services required by this Contract, and that it will perform all services in
a manner commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not employed by City,
nor have any contractual relationship with City.
6. RESPONSIBILITY FOR DAMAGES OR INJURY
6.1 City and all officers, employees and representatives thereof shall not be responsible
in any manner for any loss or damage to any of the materials or other things used or
employed in performing the Project or for injury to or death of any person as a result
of Contractor's performance of the services required hereunder; or for damage to
• property from any cause arising from the performance of the Project by Contractor,
or its subconcontractors, or its workers, or anyone employed by either of them.
6.2 Contractor shallTe responsible for any liability imposety law and for injuries to or
death of any person or damage to property resulting from defects, obstructions or
from any cause arising from Contractor's work on the Project, or the work of any
subcontractor or supplier selected by the Contractor. •
6.3 Contractor shall indemnify, hold harmless, and defend City, its officers and
employees from and against: (1) any and all loss, damages, liability, claims,
allegations of liability, suits, costs and expenses for damages of any nature
whatsoever, including, but not limited to, bodily injury, death, personal injury,
property damage, or any other claims arising from any and all acts or omissions of
Contractor, its employees, agents or subcontractors in the performance of services
or work conducted or performed pursuant to this Contract; (2) use of improper
materials in performing this Project; including, without limitation, defects in
workmanship or materials and /or design defects or (3) any and all claims asserted by
Contractor's subconcontractors or suppliers on the Project, and shall include
reasonable attorneys' fees and all other costs incurred in defending any such claim.
However, nothing herein shall require Contractor to indemnify City from the sole
negligence or willful misconduct of City, ifs officers or employees.
6A Contractor shall perform all Project work in a manner to minimize .public inconvenience
and possible hazard, to restore other work areas to their original condition and former
usefulness as soon as possible, and to protect public and private property. Contractor
shall be liable for any private or public property damaged during the performance of the
Project work.
6.5 To the extent authorized by law, as much of the money due Contractor under and by
virtue of the Contract as shall be considered necessary by City may be retained by it
until disposition has been made of such suits or claims for damages as aforesaid. •
6.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in
any action to enforce the terms of this Contract, except to the extent provided in Section
6.3 above.
6.7 The rights and obligations set forth in this Section shall survive the termination of this
Contract.
7. INDEPENDENT CONTRACTOR
City has retained Contractor as an independent contractor and nether Contractor nor its
employees are to be considered employees of the City. The manner and means of
conducting the work are under the control of Contractor, except to the extent they are
limited by statute, rule or regulation and the express terms of this Contract. No civil
service status or other right of employment shall accrue to Contractor or its employees.
8. COOPERATION
Contractor agrees to work closely and cooperate fully with City s designated Project
Administrator and any other agencies that may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with the Contractor on the Project.
9. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement of work.
Contractor shall obtain, provide and maintain at its own expense during the term of this •
Contract, a policy or policies of liability insurance of the type and amounts described below
and in a form satisfactory to City.
A. Certificates of trance. Contractor shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required herein.
Insurga�ce certificates must be approved by City's Risk Manager prior to
• comrfiencement of performance or issuance of any permit. Current certification of
insurance shall be kept on file with City's at all times during the term of this Contract.
B. Signature. A person authorized by the insurer to bind coverage on its behalf shall
sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A (or
higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's
Risk Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Contractor shall maintain Workers'
Compensation Insurance and Employer's Liability Insurance for his or her
employees in accordance with the laws of the State of California. In addition,
Contractor shall require each subcontractor to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's employees. Any
notice of cancellation or non - renewal of all Workers' Compensation policies must
be received by City at least thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents, employees and
volunteers for losses arising from work performed by Contractor for City.
• ii. General Liability Coverage. Contractor shall maintain commercial general liability
insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury, and property damage, including
without limitation, contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general aggregate
limit shall apply separately to the work to be performed under this Contract, or
the general aggregate limit shall be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance
covering bodily injury and property damage for all activities of the Contractor
arising out of or in connection with work to be performed under this Contract,
including coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than one million dollars ($1,000,000) combined single limit for
each occurrence.
E. Endorsements. Each general liability and automobile liability insurance policy shall
be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insureds with respect to liability arising
out of work performed by or on behalf of the Contractor.
ii. This policy shall be considered primary insurance as respects to City, its elected
or appointed officers, officials, employees, agents and volunteers as respects to
all claims, losses, or liability arising directly or indirectly from the Contractor's
operations or services provided to City. Any insurance maintained by City,
• including any self - insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided hereunder.
iii. This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of
liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected or appointed •
officers, officials, employees, agents and volunteers.
v. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to City, its elected or appointed officers, officials, employees,
agents or volunteers.
A. The insurance provided by this policy shall not be suspended, voided, canceled,
or reduced in coverage or in limits, by either party except after thirty (30)
calendar days (10 calendar days written notice of non - payment of premium)
written notice has been received by City.
F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim
made or suit instituted arising out of or resulting from Contractor's performance
under this Contract.
G. Additional Insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
10. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California, not
less than the general prevailing rate of per diem wages including legal holidays and
overtime work for each craft or type of workman needed to execute the work
contemplated under the Agreement shall be paid to all workmen employed on the
work to be done according to the Agreement by the Contractor and any .
subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.),
the Director of Industrial Relations has ascertained the general prevailing rate of per
diem wages in the locality in which the work is to be performed for each craft,
classification, or type of workman or mechanic needed to execute the Agreement. A
copy of said determination is available by calling the prevailing wage hotline number
415 -703 -4774, and requesting one from the Department of Industrial Relations. The
Contractor is required to obtain the wage determinations from the Department of
Industrial Relations and post at the job site the prevailing rate or per diem wages. It
shall be the obligation of the Contractor or any subcontractor under him/her to comply
with all State of California labor laws, rules and regulations and the parties agree that
the City shall not be liable for any violation thereof.
11. BONDING
Contractor shall obtain, provide and maintain at its own expense during the tens of this
Contract: a Labor and Materials Payment Bond in the amount of one hundred percent
(100 %) of the total amount to be paid Contractor as set forth in this Agreement and in the
form attached hereto as Exhibit C which is incorporated herein by this reference.
The Labor and Materials Payment Bond shall be issued by an insurance organization or
surety (1) currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, (2) listed as an acceptable surety in the latest revision of
the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's •
Key Ratina Guide: Property - Casualty
The Contractor shall deliver, concurrently with execution of this Agreement, the Labor and
Materials Payment Bond, a certified copy of the "Certificate of Authority" of the Insurer or
Surety issued by the•urance Commissioner, which authorizes the Insurer or Surety to
transact surety insurance in the Sate of California.
• 12. SUBCONTRACTING
City and Contractor agree that subcontractors may be used to complete the work outlined
in the Scope of Services provided the Contractor obtains City approval prior to the
subcontractor performing any work. Contractor shall be fully responsible to City for all acts
and omissions of the subcontractors. Nothing in this Contract shall create any contractual
reiationship between City and subcontractor nor shall it create any obligation on the part of
City to pay or to see to the payment of any monies due to any such subcontractor other
than as otherwise required by law.
13. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to constitute
a failure to pay according to the terms of this Contract. Contractor shall not discontinue
Work as a result of such withholding. Contractor shall have an immediate right to appeal to
the City Manager or his/her designee with respect to such disputed sums. Contractor shall
be entitled to receive interest on any withheld sums at the rate of return that City earned
on its investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
14. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the California Political
Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial
interest that may foreseeably be materially affected by the work performed under this
. Contract, and (2) prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
if subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do
so constitutes a material breach and is grounds for immediate termination of this Contract
by City. Contractor shall indemnify and hold harmless City for any and all claims for
damages resulting from Contractor's violation of this Section.
15. NOTICES
All notices, demands, requests or approvals to be given under the terms of this Contract shall
be given in writing, to City by Contractor and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United States
mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices,
demands, requests or approvals from Contractor to City shall be addressed to City at:
City of Newport Beach
Attn: Recreation Department
3300 Newport Blvd.
Newport Beach, CA, 92663
Phone: 949 - 6443161
Fax: 949 - 644 -3155
All notices, demands, requests or approvals from CITY to Contractor shall be addressed to
Contractor at
Linnert Builders
. Attn: Bob Linnert
1675 N Shaffer St.
Orange CA 92867
Phone /Fax: 714974 -4393
16. TERMINATION • •
In the event that either party fails or refuses to perform any of the provisions of this
Contract at the time and in the manner required, that party shall be deemed in default in
the performance of this Contract. If such default is not cured within a period of two (2) •
calendar days, or if more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due performance
within two (2) calendar days after receipt of written notice of default, specifying the nature
of such default and the steps necessary to cure such default, the non - defaulting party may
terminate the Contract forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Contract at any time by giving seven (7) calendar days
prior written notice to Contractor. In the event of termination under this Section, City shall
pay Contractor for services satisfactorily performed and costs incurred up to the effective
date of termination for which Contractor has not been previously paid. On the effective
date of termination, Contractor shall deliver to City all materials purchased in performance
of this Contract.
17. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations
and requirements of all governmental entities, including federal, state, county or municipal,
whether now in force or hereinafter enacted.
18. WAIVER
A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, covenant or
condition.
19. INTEGRATED CONTRACT
This Contract represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and Contracts of
whatsoever kind or nature are merged herein. No verbal Contract or implied covenant
shall be held to vary the provisions herein.
20. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Contract and the
Scope of Services, the terns of this Contract shall govern.
21. AMENDMENTS
This Contract may be modified or amended only by a written document executed by both
Contractor and City and approved as to form by the City Attorney.
22. EFFECT OF CONTRACTOR'S EXECUTION
Execution of this Contract by Contractor is a representation that Contractor has visited the
Project Site, has become familiar with the local conditions under which the work is to be
performed, and has taken into consideration these factors in submitting its Project
Proposal and Scope of Work.
23. CONTROLLING LAW AND VENUE
•
The laws of the State of California shall govern this Contract and all matters relating to it •
and any action Drought relating to this Contract shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
24. WARRANTY
24.1 Contractor agrees that the Landscape Structures equipment and Softile KrosLOCK
• surfacing installed pursuant to this Contract shall be covered by a 10 year materials
and workmanship manufacturer warranty, attached as indicated in Exhibit B and
which is incorporated in full by this reference.
23.2 Contractor agrees that the Landscape Structures equipment and Softile KrosLOCK
surfacing installed pursuant to this Contract fully complies with ASTM, IPEMA and
CPSC guidelines and standards for playground safety.
25. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason
of the authorship of the Agreement or any other rule of construction which might
otherwise apply.
IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the day and
year first written above.
APPROVED AS TO FORM:
Aaron C. Harp,
•Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
Attachment: Item A — Scope of Work
Item B —Manufacturer Warranty
Item C — Labor and Materials Bond
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Homer Bludau, City Manager
for the City of Newport Beach
Linnert Builders
Name:
J
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