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.
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3. COMPENSATION
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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
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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
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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
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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.
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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
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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.
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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:
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Leilani Brown, �
City Clerk
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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
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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::
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Attacninents: Exhibit A - Scope of Services
Exhibit B - Warranty Information
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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
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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
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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.
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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.