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HomeMy WebLinkAboutC-4378 - Contract for Landscaping Products and ServicesCONTRACT WITH ROGER'S GARDENS FOR LANDSCAPING PRODUCTS AND SERVICES THIS CONTRACT is made and entered into as of this day 4witoAi 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City") and ROGER'S GARDENS LANDSCAPING, LP, a California limited partnership, whose principal place of business is 2301 San Joaquin Hills Road, Corona del Mar, Califomia, 92625, ( "Contractor"), and is made with reference to the following: RECITALS A. City is planning to make landscaping improvements at the intersection of Pacific Coast Highway and Marguerite ( "Property "), consistent with the Corona del Mar Vision Plan. B. City desires to engage Contractor to remove previous plantings and construct certain landscaping improvements ('Project"). Contractor has agreed to perform the Project over a one -day period, commencing on September 17, 2009. C. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications 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 Contract, 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 Contract, 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 Time is of the essence in the performance of services under this Contract and Contractor shall complete the Work within the time set forth in this Section. The failure by Contractor to complete the Project on or before October 15, 2009 ( "Completion Deadline "), as the same might be extended pursuant to this Contract, may result in termination of this Contract by City. 0 3. COMPENSATION 0 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 Two Thousand Two Hundred and Forty-Four Dollars and 001100 ($2,244). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. City will pay Contractor the Contract Price for the work to be performed under this Contract, subject to additions and deductions pursuant to Change Orders agreed upon in writing by the parties. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. 4. ADMINISTRATION This Agreement will be administered by the Economic Development Division of the Planning Department. Kathlyn Bowden, Economic Development Coordinator, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 6. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 5.1 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 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 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. 6. RESPONSIBILITY FOR DAMAGES OR INJURY 6.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the services required hereunder, or for damage to property from any cause arising from the performance of the Project by Contractor, or its subconcontractors, or its workers, or anyone employed by either of them. 6.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 6.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims arising from any and all acts or omissions 2 0 0 of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement; (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 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, its 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 Agreement 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 Agreement, except to the extent provided in Section 6.3 above. 6.7 The rights and obligations set forth in this Section shall survive the termination of this Contract. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. 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 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 Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit or performance of any 3 • • work. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. 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 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 Agreement, 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 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 for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 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. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers • • as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely /Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Contract. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 10. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the work outlined in the Scope of Services provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Contract shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 11. 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. 0 0 12. 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. 13. NOTICES 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: Attn: Kathlyn Bowden, Economic Development Coordinator Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92660 Phone: 949 -644 -3230 Fax: 949- 6443224 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Tim Fiskin, General Manager Roger's Gardens Landscaping, LP 2301 San Joaquin Hills Road Corona del Mar, CA 92625 Phone: 800 -647 -2356 Fax: 949 - 759 -0619 14. TERMINATION 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 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 Agreement 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 Agreement at any time by giving seven (7) calendar H 0 0 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 Agreement. 15. 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 Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 19. INTEGRATED AGREEMENT 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. 20. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services, the terms of this Agreement shall govern. 21. 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. 22. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement 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 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. 7 24. 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. 25. WARRANTY Contractor agrees that the senecio mandraliscae planting material installed pursuant to this Agreement shall be covered by a limited 30 -day warranty as outlined in the Warranty Information, attached hereto as Exhibit B and incorporated in full by this reference. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: A 0,X"- C . ff�— Aaron Harp, Assistant City Attorney for the City of Newport Beach ATTEST: X -0� - Q bl(301� Leilani Brown, � City Clerk N4 CITY OF NEWPORT BEACH, A Municipal Corporation By: omer Bludau, ity anager for the City of Newport Beach By: Name: Title: By: Name: Title: Attachments: Exhibit A - Scope of Services Exhibit B - Warranty Information I 0 0 24. 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. 25. WARRANTY Contractor agrees that the senecio mandraliscae planting material installed pursuant to this Agreement shall be covered by a limited 30 -day warranty as outlined in the Warranty Information. attached hereto as Exhibit B and incorporated in full by this reference IN WITNESS WHEREOF. the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron Harp. Assistant City Attorney for the City of Newport Beach ATTEST: By. --° LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation M EM Homer Bludau, City Manager for the City of Newport Beach Name: Title. By. 44& Name: ``ItA Fii,94414 Tittle:: rWC�i� f✓w r`7 L Attacninents: Exhibit A - Scope of Services Exhibit B - Warranty Information 0 0 0 Exhibit A Scope of Work L] 09!03/2009 City of Corona del Mar Bernie Svalstad P.O. Box 2295 Newport Beach, CA. 92659 949 - 232 -7373 0 EXHIBIT A PLANTING PROPOSAL Qtq Size Description Cost Ext. 200 4" Senecio mandraliscae 5.00 1,000.00 Sub Total 1,000.00 20% Discount (200•DO) Sub Total 800.00 Tax 70.00 Planting Labor 1,374.00 Planting Total 2,244.00 Page 1 0 0 Roger's Gardens Landscaping, LP 2301 San Joaquin Hills Road Corona del Mar, CA 92625 Phone: 800. 647.2356 Fax: 949. 759-0619 Email: ronp@rogersgardens.com California landscaping contractor 0903479 Contract date: Project number. Owner. Limited Warranty Roger's Gardens landscaping, LP, a Caifomia fimfted partnership (`Contractor") hereby makes the following Limited Warranty (Varranty ") to the owner named above ("Owner'): 1. Contract This Warranty applies only to the related Landscaping Home fmprovemonl Contract ("Contract") beNreen Contractor and Omer. Capitalized terms not defined in this Warranty shall have the meaning given them in the Contract. 2. warranty. 2.1 Contractor warrants to Owner that plants (including trees and shrubs) wit remain in heathy condition for the following periods of time after the completion date, so long as Owner has ma limed and watered then according to Contractors InsWctons: (a) for annual plants and ground cover, 30 days; (b) for plertts up to 15 gdms, 90 days; and (c) for large Monts, one year. Contractors warranty obligation regarding plants is limited to replacemsrht of the plants with equivalent plants suitable for the beam. 2.2 Contractor warrants to Owner that any non4vtng improvements will the free of defects in materials, workmanship and Installation for one year after the completion date. (a) ContracWs obligation under this Warranty is limited to replacing or repairing, at Contractors option, any such Improvements that are found by Contractor to be covered under this Warranty. Contractor will have a reasonable period of time to make any such replacements or repairs. (b) If a subcontractor warrants is work beyond one year (examples: swimming pod, hardscape and outdoor bulldogs). Contractor will assist Ovine in making a Main on any such submntractor warranty. 2.3 For any particular defect, this Warranty is effective only if Owner gives Contractor prompt wrtten notice of the defect Contractor will have no obligation undo this Warranty with respect to any defect unless it receives such notice within the applicable warranty period described In Section 2.1 or Section 2.2. 2.4 Improvements that have been repaired or replaced by Contractor as provided in this Section wet have a remaining warranty of (a) the balance of Ne original warranty period or (b) 30 days after line date of repair or replacement, whichever is longer. G5n'lc t 3. Exclusions. 3.1 The foregoing warranties will not apply to any Improvements if: (a) Owner has not maintained the Improvements as recommended by Contractor. (b) The Improvements are damaged because of acts of omissions of any person other than Contactor. (c) The improvements are damaged by casualty, acts of God, indement weather, or other drcumstarnces or contingences unforeseen by Contractor and beyond Contractors reasonable oon9ol. 4. Payment. It Is a condition precedent to Contractor's obligations to pedorm under this Warranty that Contractor has received full payment of at undsputed amounts payable for the knprovsments. 5. No Other Warranties. Except for the limited warranties described in this Warranty. Contractor makes no warranties mgam%g the Improvements, except for two that are required by applicable law. 6. No Assignment of Rights. The warranties contained in this Warranty extend only to the original Owner, and no attempt to extend the warranties to any subsequent owner of the Improvements will be valid or enforteade without the express written consent of the Contactor.