HomeMy WebLinkAboutAGENDA REPORT 2014 0702 CCSA REG ITEM 10Rlay-AIMET-C114 0 :4 Q • . •
TO: Honorable City Council
FROM:
Jeremy Laurentowski, Parks and Recre tion
BY:
Jessica Sandifer, Management Analy
DATE:
a
June 20, 2014 (CC Meeting of July 2, 20 4)
I
CITY OF MOORPARK,CALIFORNIA
City Council Meeting
of
ACTION:
Director
SUBJECT: Consider the Playground Equipment Proposed by RecWest Outdoor
Products, Inc.; and Agreement with RecWest Outdoor Products, Inc.
(Landscape Structures, Inc.) for Installation of Playground
Equipment at Walnut Acres Park (Project # 5081)
BACKGROUND
On June 19, 2013, the City Council approved the conceptual design for the park site at
the undeveloped property at 161 Second Street. The plans and specifications for the
park site have been completed and were approved by the City Council on April 16,
2014. On June 4, 2014, the City Council approved naming the park Walnut Acres Park.
DISCUSSION
The design of the playground equipment was excluded from the Walnut Acres Park
project plans and specifications, due to the fact that the City Council approves the final
design of the playground equipment for the City's parks. On May 28, 2014, in response
to a Request for Proposals (RFP), staff received proposals from four vendors who
specialize in commercial grade park playground equipment. The RFP included a
"turnkey" project to design and install the playground equipment, ADA accessibility
features, and other necessary improvements to complete the playground at Walnut
Acres Park. The playground design was based on a budget of $115,000 and certain
requested playground components, which included two playground structures, one
designed for children in the 2 to 5 year age group, and one designed for children in the
5 to 12 year age group, and a swing set with four seats to accommodate both toddlers
and older children.
Staff requested that each design include the installation of engineered wood fiber (EWF)
as the primary surface material for the playground, as well as a sand play area
incorporated into the overall design. EWF is ADA compliant and meets safety fall zone
requirements. However, after discussions with several of the vendors, it was brought to
347
Honorable City Council
July 2, 2014
Page 2
staff's attention that a sand play area installed adjacent to the EWF would be a
maintenance concern, as the two materials will intermix. Due to the relatively small size
of the park site and limited room for an auxiliary sand play area, staff determined that a
sand play area would not be appropriate for the park site.
On June 2, 2014, staff presented the four playground designs to the Parks and
Recreation Commission (Commission). All four vendors had similar pricing and were
well within the budget provided by the City. The Commission selected the RecWest
Outdoor Products, Inc. (Landscape Structures, Inc.) playground design as the
recommended option for Walnut Acres Park, due to the fact that the play structure
exhibited a variety of interesting and challenging play features (Attachment 1). The
Commission also noted that the playground design was different than the playground
structures installed at other City parks and felt this option was in line with the City's
desire to provide unique playground equipment at each City park. The Commission
opted not to recommend color options and recommended that staff select the colors for
the playground equipment. The colors selected by staff are green, tan and brown to
compliment the natural appearance of the California native landscaping and natural
building materials, such as the decomposed granite paving, boulders and river rock.
Landscape Structures, Inc. has the necessary experience and qualifications to perform
the work. Staff is requesting approval of an agreement with Landscape Structures, Inc.
in the amount of $103,441.59 with a 15% contingency of $15,516.24 for a total
Agreement price of $118,957.83 for the design and installation of playground
equipment, ADA accessibility features and all other necessary improvements to
complete the playground at Walnut Acres Park. The other three playground equipment
options have been included for reference (Attachments 2, 3, 4)
FISCAL IMPACT
Sufficient funds are already budgeted in the FY 2014/15 Capital Improvement Project
Budget for the Walnut Acres Park project (Project # 5081) for the playground equipment
and installation. No additional funding is required at this time.
STAFF RECOMMENDATION
1. Approve the Playground Equipment Proposed by Landscape Structures, Inc.; and
2. Approve Agreement with Landscape Structures, Inc., for playground equipment at
Walnut Acres Park, located at 161 Second Street, subject to final language approval
of the City Manager and City Attorney, and authorize City Manager to execute the
Agreement.
Attachment 1 — RecWest Outdoor Products, Inc., Landscape Structures Play Equipment
Attachment 2 — Great Western Park and Playground, Game Time Play Equipment
Attachment 3 - Recreation Republic, Kompan Play Equipment
Attachment 4 - Miracle Playground Equipment
Attachment 5 - Agreement
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ATTACHMENT 5
AGREEMENT BETWEEN THE CITY OF MOORPARK AND LANDSCAPE
STRUCTURES, INC., FOR DESIGN AND INSTALLATION OF PLAYGROUND AT
WALNUT ACRES PARK
THIS AGREEMENT, is made and effective as of this day of
2014, between the City of Moorpark, a municipal corporation
("City") and Landscape Structures, Inc., a corporation ("Contractor"). In consideration of
the mutual covenants and conditions set forth herein, the parties agree as follows:
WHEREAS, City has the need for construction services related to design and
installation of a playground at Walnut Acres Park; and
WHEREAS, Contractor specializes in providing such services and has the proper
work experience, certifications, and background to carry out the duties involved; and
WHEREAS, the City Council of the City at a meeting held on the 2nd day of July,
2014, authorized the City Manager to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, benefits, and
premises herein stated, the parties hereto agree as follows -
1 .
ollows:
1. TERM
The term of the Agreement shall be from the date of execution to completion of
the work identified in the Scope of Services and in conformance with Exhibit B, unless
this Agreement is terminated or suspended as referred to herein.
2. SCOPE OF SERVICES
City does hereby retain Contractor in a contractual capacity to provide
construction services related to design and installation of playground equipment, as set
forth in Exhibit B: Contractor's Bid Proposal, dated June 5, 2014 which exhibit is
attached hereto and incorporated herein by this reference as though set forth in full and
hereinafter referred to as the "Proposal" and hereinafter referred to as Exhibit B. Where
said Scope of Services is modified by this Agreement, or in the event there is a conflict
between the provisions of said Scope of Services and this Agreement, the language
contained in this Agreement shall take precedence.
Contractor shall perform the tasks described and set forth in Exhibit B. Contractor
shall complete the tasks according to the schedule of performance which is also set
forth in Exhibit B.
Compensation for the services to be performed by Contractor shall be in
accordance with Exhibit B. Compensation shall not exceed the rates or total value of
one hundred three thousand four hundred forty-one dollars and fifty-nine cents
($103,441.59) as stated in Exhibit B, plus a fifteen percent (15%) contingency of fifteen
thousand five hundred sixteen dollars and twenty-four cents ($15,516.24) for a total
354
ATTACHMENT 5
AGREEMENT BETWEEN THE CITY OF MOORPARK AND LANDSCAPE
STRUCTURES, INC., FOR DESIGN AND INSTALLATION OF PLAYGROUND AT
WALNUT ACRES PARK
THIS AGREEMENT, is made and effective as of this day of
, 2014, between the City of Moorpark, a municipal corporation
("City") and Landscape Structures, Inc., a corporation ("Contractor"). In consideration of
the mutual covenants and conditions set forth herein, the parties agree as follows:
WHEREAS, City has the need for construction services related to design and
installation of a playground at Walnut Acres Park; and
WHEREAS, Contractor specializes in providing such services and has the proper
work experience, certifications, and background to carry out the duties involved; and
WHEREAS, the City Council of the City at a meeting held on the 2nd day of July,
2014, authorized the City Manager to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, benefits, and
premises herein stated, the parties hereto agree as follows -
1 .
ollows:
1. TERM
The term of the Agreement shall be from the date of execution to completion of
the work identified in the Scope of Services and in conformance with Exhibit B, unless
this Agreement is terminated or suspended as referred to herein.
2. SCOPE OF SERVICES
City does hereby retain Contractor in a contractual capacity to provide
construction services related to design and installation of playground equipment, as set
forth in Exhibit B: Contractor's Bid Proposal, dated June 5, 2014 which exhibit is
attached hereto and incorporated herein by this reference as though set forth in full and
hereinafter referred to as the "Proposal" and hereinafter referred to as Exhibit B. Where
said Scope of Services is modified by this Agreement, or in the event there is a conflict
between the provisions of said Scope of Services and this Agreement, the language
contained in this Agreement shall take precedence.
Contractor shall perform the tasks described and set forth in Exhibit B. Contractor
shall complete the tasks according to the schedule of performance which is also set
forth in Exhibit B.
Compensation for the services to be performed by Contractor shall be in
accordance with Exhibit B. Compensation shall not exceed the rates or total value of
one hundred three thousand four hundred forty-one dollars and fifty-nine cents
($103,441.59) as stated in Exhibit B, plus a fifteen percent (15%) contingency of fifteen
thousand five -hundred sixteen dollars and twenty-four cents ($15,516.24) for a total
355
contract value of one hundred eighteen thousand nine hundred fifty-seven dollars and
eighty-two cents ($118,957.82), without a written amendment to the agreement
executed by both parties. Payment by City to Contractor shall be as referred to in this
Agreement.
City and Contractor acknowledge that this project is a public work to which
prevailing wages apply. Contractor agrees to comply with and be bound by all the
terms, rules and regulations described in (a) Division 2, Part 7, Chapter 1 (commencing
with Section 1720) of the California Labor Code, including without limitation Labor Code
Section 1771 and (b) the rules and regulations established by the Director of Industrial
Relations implementing such statutes, as though set forth in full herein, including any
applicable amendments made thereto during the term of this Agreement. For every
subcontractor who will perform work on this project, Contractor shall be responsible for
subcontractor's compliance with (a) and (b), and Contractor shall take all necessary
actions to ensure subcontractor's compliance.
3. PERFORMANCE
Contractor shall at all times faithfully, competently, and to the best of Contractor's
ability, experience, and talent, perform all tasks described herein. Contractor shall
employ, at a minimum, generally accepted standards and practices utilized by persons
engaged in providing similar services as are required of Contractor hereunder in
meeting its obligations under this Agreement.
4. MANAGEMENT
The individual directly responsible for Contractor's overall performance of the
Agreement provisions herein above set forth and to serve as principal liaison between
City and Contractor shall be Carolynn Jones, and no other individual may be substituted
without the prior written approval of the City Manager.
The City's contact person in charge of administration of this Agreement, and to
serve as principal liaison between Contractor and City, shall be the City Manager or the
City Manager's designee.
5. PAYMENT
The City agrees to pay Contractor monthly, in accordance with the terms and the
schedule of payment as set forth in Exhibit B, attached hereto and incorporated herein
by this reference as though set forth in full, based upon actual time spent on the above
tasks. This amount shall not exceed one hundred three thousand four hundred forty-one
dollars and fifty-nine cents ($103,441.59) as stated in Exhibit B, plus a fifteen percent
(15%) contingency of fifteen thousand five hundred sixteen dollars and twenty-four
cents ($15,516.24) for a total contract value of one hundred eighteen thousand nine
hundred fifty-seven dollars and eighty-two cents ($118,957.82), for the total term of the
Agreement unless additional payment is approved as provided in this Agreement.
Contractor shall not be compensated for any services rendered in connection
Landscape Structures, Inc. Page 2 of 15
356
with its performance of this Agreement, which are in addition to those set forth herein,
unless such additional services are authorized in advance and in writing by the City
Manager. Contractor shall not be compensated for any services rendered in connection
with its performance of this Agreement, unless such additional services and
compensation are authorized, in advance, in a written amendment to the agreement
executed by both parties. The City Manager, if authorized by City Council, may approve
additional work not to exceed fifteen percent (15%) of the amount of the Agreement.
Contractor shall submit invoices monthly for actual services performed. Invoices
shall be submitted on or about the first business day of each month, or as soon
thereafter as practical, for services provided in the previous month. Payment shall be
made within thirty (30) days of receipt of each invoice as to all non -disputed fees. If the
City disputes any of Contractor's fees it shall give written notice to Contractor within
thirty (30) days of receipt of any disputed fees set forth on the invoice. Contractor shall
provide appropriate documentation, as determined by the City, for all reimbursable
expenses.
6. TERMINATION OR SUSPENSION WITHOUT CAUSE
The City may at any time, for any reason, with or without cause, suspend, or
terminate this Agreement, or any portion hereof, by serving upon the Contractor at least
ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
The Contractor may terminate this Agreement only by providing City with written
notice no less than thirty (30) days in advance of such termination. In the event of such
termination, Contractor shall be compensated for such services up to the date of
termination. Such compensation for work in progress shall be prorated as to the
percentage of progress completed at the date of termination.
If the City Manager or the City Manager's designee determines that the
Contractor is in default in the performance of any of the terms or conditions of this
Agreement, the City may proceed in the manner set forth in Section 6-4 of the
Greenbook.
7. DEFAULT OF CONTRACTOR
The Contractor's failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Contractor is in default for cause under the terms
of this Agreement, City shall have no obligation or duty to continue compensating
Contractor for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Contractor. If such failure by the
Contractor to make progress in the performance of work hereunder arises out of causes
beyond the Contractor's control, and without fault or negligence of the Contractor, it
shall not be considered a default.
Landscape Structures, Inc. Page 3 of 15 357
If the City Manager or the City Manager's designee determines that the
Contractor is in default in the performance of any of the terms or conditions of this
Agreement, he/she shall cause to be served upon the Contractor a written notice of the
default. The Contractor shall have five (5) working days after service upon it of said
notice in which to cure the default by rendering a satisfactory performance. In the event
that the Contractor fails to cure its default within such period of time, the City shall have
the right, notwithstanding any other provision of this Agreement, to terminate this
Agreement without further notice and without prejudice to any other remedy to which it
may be entitled at law, in equity or under this Agreement.
8. LIQUIDATED DAMAGES
If the Contractor fails to complete the work, or any portion thereof, within the time
period required by this Agreement or as duly extended in writing by the City Manager,
Contractor shall forfeit and pay to the City, as liquidated damages, the sum of one
hundred twenty-five dollars ($125) per day for each calendar day the work, or portion
thereof, remains uncompleted after the above specified completion date. Liquidated
damages shall be deducted from any payments due or to become due to the Contractor
under the terms of this Agreement [Government Code Sec. 53069.85]. Progress
payments made by the City after the above specified completion date shall not
constitute a waiver of liquidated damages by the City.
9. OWNERSHIP OF DOCUMENTS
Contractor shall maintain complete and accurate records with respect to sales,
costs, expenses, receipts, and other such information required by City that relate to the
performance of services under this Agreement. Contractor shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Contractor shall provide
free access to the representatives of City or its designees at reasonable times to such
books and records; shall give the City the right to examine and audit said books and
records; shall permit City to make transcripts therefrom as necessary; and shall allow
inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Notification of audit shall be provided at least thirty (30) days before any
such audit is conducted. Such records, together with supporting documents, shall be
maintained for a period of ten (10) years after receipt of final payment.
Upon completion of, or in the event of termination or suspension of this
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Contractor. With respect to computer files, Contractor shall make available to the City,
at the Contractor's office and upon reasonable written request by the City, the
necessary computer software and hardware for purposes of accessing, compiling,
transferring, and printing computer files.
Landscape Structures, Inc. Page 4 of 15
358
10. INDEMNIFICATION AND HOLD HARMLESS
Contractor shall indemnify, defend with legal counsel approved by City, and hold
harmless City, its officers, officials, employees and volunteers from and against all
liability, loss, damage, expense, cost (including without limitation reasonable legal
counsel fees, expert fees and all other costs and fees of litigation) of every nature
arising out of or in connection with Contractor's negligence, recklessness or willful
misconduct in the performance of work hereunder or its failure to comply with any of its
obligations contained in this agreement, except such loss or damage which is caused by
the sole or active negligence or willful misconduct of the City. Should conflict of interest
principles preclude a single legal counsel from representing both City and Contractor, or
should City otherwise find Contractor's legal counsel unacceptable, then Contractor shall
reimburse the City its costs of defense, including without limitation reasonable legal
counsels fees, expert fees and all other costs and fees of litigation. The Contractor shall
promptly pay any final judgment rendered against the City (and its officers, officials,
employees and volunteers) with respect to claims determined by a trier of fact to have
been the result of the Contractor's negligent, reckless or wrongful performance. It is
expressly understood and agreed that the foregoing provisions are intended to be as
broad and inclusive as is permitted by the law of the state of California and will survive
termination of this Agreement.
Contractor obligations under this section apply regardless of whether or not such
claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense,
judgment, civil fine or penalty, or liability was caused in part or contributed to by an
Indemnitee. However, without affecting the rights of City under any provision of this
agreement, Contractor shall not be required to indemnify and hold harmless City for
liability attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of
competent jurisdiction. In instances where City is shown to have been actively
negligent and where City active negligence accounts for only a percentage of the
liability involved, the obligation of Contractor will be for that entire portion or percentage
of liability not attributable to the active negligence of City.
Contractor agrees to obtain executed indemnity agreements with provisions
identical to those set forth here in this Section from each and every subcontractor or any
other person or entity involved by, for, with, or on behalf of Contractor in the
performance of this Agreement. In the event Contractor fails to obtain such indemnity
obligations from others as required here, Contractor agrees to be fully responsible
according to the terms of this Section.
Failure of City to monitor compliance with these requirements imposes no
additional obligations on City and will in no way act as a waiver of any rights hereunder.
This obligation to indemnify and defend City as set forth here is binding on the
successors, assigns, or heirs of Contractor and shall survive the termination of this
Agreement or Section.
This Indemnity shall survive termination of the Agreement or Final Payment
hereunder. This Indemnity is in addition to any other rights or remedies that the
Landscape Structures, Inc. Page 5 of 15
359
Indemnitees may have under the law or under any other Contract Documents or
Agreements. In the event of any claim or demand made against any party which is
entitled to be indemnified hereunder, City may, in its sole discretion, reserve, retain, or
apply any monies to the Contractor under this Agreement for the purpose of resolving
such claims; provided, however, City may release such funds if the Contractor provides
City with reasonable assurance of protection of the Indemnitees' interests. City shall, in
its sole discretion, determine whether such assurances are reasonable.
11. INSURANCE
Contractor shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit A attached hereto and
incorporated herein by this reference as though set forth in full.
12. INDEPENDENT CONTRACTOR
Contractor is and shall at all times remain as to the City a wholly independent
Contractor. The personnel performing the services under this Agreement on behalf of
Contractor shall at all times be under Contractor's exclusive direction and control.
Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Contractor or any of Contractor's officers, employees, or agents, except as
set forth in this Agreement. Contractor shall not at any time or in any manner represent
that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Contractor shall not incur or have the power to incur
any debt, obligation, or liability against City, or bind City in any manner.
No employee benefits shall be available to Contractor in connection with the
performance of this Agreement. Except for the fees paid to Contractor as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Contractor
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Contractor for injury or sickness arising out of performing services
hereunder.
13. LEGAL RESPONSIBILITIES
The Contractor shall keep itself informed of local, state, and federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Contractor shall at all times
observe and comply with all such laws and regulations, including but not limited to the
Americans with Disabilities Act and Occupational Health and Safety Administration laws
and regulations. The City, and its officers and employees, shall not be liable at law or in
equity occasioned by failure of the Contractor to comply with this Section.
14. ANTI DISCRIMINATION
Neither the Contractor, nor any subcontractor under the Contractor, shall
discriminate in employment of persons upon the work because of race, religious creed,
color, national origin, ancestry, physical handicap, medical condition, marital status, or
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gender of such person, except as provided in Section 12940 of the Government Code.
The Contractor shall have responsibility for compliance with this Section [Labor Code
Section 1735].
15. UNDUE INFLUENCE
Contractor declares and warrants that no undue influence or pressure is used
against or in concert with any officer or employee of the City in connection with the
award, terms, or implementation of this Agreement, including any method of coercion,
confidential financial arrangement, or financial inducement. No officer or employee of
the City will receive compensation, directly or indirectly from Contractor, or any officer,
employee, or agent of Contractor, in connection with the award of this Agreement or any
work to be conducted as a result of this Agreement. Violation of this Section shall be a
material breach of this Agreement entitling the City to any and all remedies at law or in
equity.
16. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of the City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the Project
during his/her tenure or for one (1) year thereafter, shall have any interest, direct or
indirect, in any agreement or sub -agreement, or the proceeds thereof, for work to be
performed in connection with the Project performed under this Agreement.
17. CONFLICT OF INTEREST
Contractor covenants that neither they nor any officer or principal of their firm
have any interests, nor shall they acquire any interest, directly or indirectly, which will
conflict in any manner or degree with the performance of their services hereunder.
Contractor further covenants that in the performance of this Agreement, they shall
employ no person having such interest as an officer, employee, agent, or subcontractor.
Contractor further covenants that Contractor has not contracted with nor is performing
any services directly or indirectly, with the developer(s) and/or property owner(s) and/or
firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or
processing an entitlement application for property in the City or its Area of Interest, now
or within the past one (1) year, and further covenants and agrees that Contractor and/or
its subcontractors shall provide no service or enter into any contract with any
developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public
agency(ies) owning property and/or processing an entitlement application for property in
the City or its Area of Interest, while under contract with the City and for a one (1) year
time period following termination of this Agreement.
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18. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such
notices and any other document to be delivered shall be delivered by personal service
or by deposit in the United States mail, certified or registered, return receipt requested,
with postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
To: Landscape Structures, Inc.
Attn: Elaine Harkess
601 7th Street, South
Delano, Minnesota 55328
Either party may, from time to time, by written notice to the other, designate a
different address or contact person, which shall be substituted for the one above
specified. Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the third (3rd) day after deposit in the United States
mail.
19. CHANGE IN NAME
Should a change be contemplated in the name or nature of the Contractor's legal
entity, the Contractor shall first notify the City in order that proper steps may be taken to
have the change reflected in the Agreement documents.
20. ASSIGNMENT
Contractor shall not assign this Agreement or any of the rights, duties, or
obligations hereunder. It is understood and acknowledged by the parties that Contractor
is uniquely qualified to perform the services provided for in this Agreement.
21. LICENSES
At all times during the term of this Agreement, Contractor shall have in full force
and effect, all licenses required of it by law for the performance of the services in this
Agreement.
22. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions, or covenants referred to herein
shall be filed in the applicable court in Ventura County, California. The City and
Contractor understand and agree that the laws of the state of California shall govern the
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rights, obligations, duties, and liabilities of the parties to this Agreement and also govern
the interpretation of this Agreement.
23. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, oral or written, are
merged into this Agreement and shall be of no further force or effect. Each party is
entering into this Agreement based solely upon the representations set forth herein and
upon each party's own independent investigation of any and all facts such party deems
material.
24. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, Sections, and
Exhibits of this Agreement are for convenience and identification only and shall not be
deemed to limit or define the content of the respective Articles, Paragraphs, Sections,
and Exhibits hereof.
25. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by both parties to this Agreement.
26. TIME OF COMPLETION
City and Contractor agree that time is of the essence in this Agreement. City and
Contractor further agree that Contractor's failure to perform on or at the times set forth
in this Agreement will damage and injure City, but the extent of such damage and injury
is difficult or speculative to ascertain. Consequently, City and Contractor agree that any
failure to perform by Contractor at or within the times set forth herein shall result in
liquidated damages as defined in this Agreement for each and every day such
performance is late. City and Contractor agree that such sum is reasonable and fair.
Furthermore, City and Contractor agree that this Agreement is subject to Government
Code Section 53069.85 and that each party hereto is familiar with and understands the
obligations of said Section of the Government Code.
27. PRECEDENCE
Contractor is bound by the contents of Proposal, Exhibit B attached hereto and
incorporated herein by this reference as though set forth in full. In the event of conflict,
the requirements of this Agreement shall take precedence over those contained in the
Proposal.
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28. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is
deemed that this Agreement was prepared by the parties jointly and equally, and shall
not be interpreted against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
29. WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision. No waiver
shall be binding unless executed in writing by the party making the waiver.
30. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of the Contractor
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Contractor and has the authority to bind Contractor to the performance of
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK LANDSCAPE STRUCTURES, INC.
By: By:
Steven Kueny, City Manager Elaine Harkess, Contract Administrator
Attest:
Maureen Benson, City Clerk
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EXHIBIT A
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Contractor will
maintain insurance in conformance with the requirements set forth below. Contractor
will use existing coverage to comply with these requirements. If that existing coverage
does not meet the requirements set forth here, it will be amended to do so. Contractor
acknowledges that the insurance coverage and policy limits set forth in this section
constitute the minimum amount of coverage required. Any insurance proceeds available
to City in excess of the limits and coverage required in this Agreement and which is
applicable to a given loss, will be available to the City.
Contractor shall provide the following types and amounts of insurance:
1. Commercial General Liability
Commercial General Liability Insurance shall be provided by an Insurance
Services Office "Commercial General Liability" policy form CG 00 01 or the exact
equivalent. Defense costs must be paid in addition to limits. There shall be no cross
liability exclusion for claims or suits by one insured against another. Limits shall be no
less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000
general aggregate.
Contractor's policy shall contain no endorsements limiting coverage beyond the
basic policy coverage grant for any of the following:
a. Explosion, collapse or underground hazard (XCU)
b. Products and completed operations
c. Pollution liability
d. Contractual liability
Coverage shall be applicable to City for injury to employees of contractors,
subcontractors, or others involved in the project. Policy shall be endorsed to provide a
separate limit applicable to this project.
2. Workers' Compensation
Workers' Compensation insurance shall be provided on a state -approved policy
form providing statutory benefits as required by law with employers' liability limits no
less than $1,000,000 per accident for all covered losses.
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3. Business Auto Coverage
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92
including symbol 1 (Any Auto) or the exact equivalent shall be provided. Limits shall be
no less than $1,000,000 per accident, combined single limit. If Contractor owns no
vehicles, this requirement may be satisfied by a non -owned auto endorsement to the
general liability policy described above. If Contractor or Contractor's employees will use
personal autos in any way on this project, Contractor shall provide evidence of personal
auto liability coverage for each such person.
4. Excess or Umbrella Liability
Excess or Umbrella Liability insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Coverage shall be provided on a "pay on behalf' basis, with defense costs
payable in addition to policy limits. There shall be no cross liability exclusion precluding
coverage for claims or suits by one insured against another. Coverage shall be
applicable to City for injury to employees of contractor, subcontractors, or others
involved in the Work. The scope of coverage provided is subject to the approval of city
following receipt of proof of insurance as required herein. Limits are subject to review.
Insurance procured pursuant to these requirements shall be written by insurers
that are admitted carriers in the state of California and with A.M. Best rating of A- or
better and a minimum financial size of VII.
Contractor and City agrees as follows:
1. Contractor agrees to endorse the third party general liability coverage required
herein to include as additional insureds City, its officials, employees, agents,
using standard ISO endorsement No. CG 2010 with an edition date of 1985.
Contractor also agrees to require all contractors, subcontractors, and any one
else involved in any way with the project contemplated by this Agreement to do
likewise.
2. Any waiver of subrogation express or implied on the part of the City to any party
involved in this Agreement or related documents applies only to the extent of
insurance proceeds actually paid. City, having required that it be named as an
additional insured to all insurance coverage required herein, expressly retains the
right to subrogate against any party for sums not paid by insurance. For its part,
Contractor agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors,
subcontractors, or others involved in any way with the project contemplated by
this Agreement to do likewise.
3. All insurance coverage maintained or procured by Contractor or required of
others by Contractor pursuant to this Agreement shall be endorsed to delete the
subrogation condition as to the city, or to specifically allow Contractor or others
providing insurance herein to waive subrogation prior to a loss. This
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endorsement shall be obtained regardless of existing policy wording that may
appear to allow such waivers.
4. It is agreed by Contractor and City that insurance provided pursuant to these
requirements is not intended by any party to be limited to providing coverage for
the vicarious liability of City, or to the supervisory role, if any, of City. All
insurance coverage provided pursuant to this or any other Agreement (express
or implied) in any way relating to City is intended to apply to the full extent of the
policies involved. Nothing referred to here or contained in any agreement
involving City in relation to the project contemplated by this Agreement is
intended to be construed to limit the application of insurance coverage in any
way.
5. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not
been first submitted to City and approved of in writing.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Contractor shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability
or reduction of discover period) that may affect City's protection without City's
prior written consent.
7. Proof of compliance with these insurance requirements, consisting of binders of
coverage, or endorsements, or certificates of insurance, shall be delivered to City
at or prior to the execution of this Agreement. In the event such proof of
insurance is not delivered as required, or in the event such insurance is canceled
or reduced at any time and no replacement coverage is provided, City has the
right, but not the duty, to obtain any insurance it deems necessary to protect its
interests under this or any other Agreement and to pay the premium. Any
premium so paid by City shall be charged to and promptly paid by Contractor or
deducted from sums due Contractor, at City option.
8. Contractor agrees to endorse, and to required others to endorse, the insurance
provided pursuant to these requirements, to require 30 days notice to City and
the appropriate tender prior to cancellation or reduction of such liability coverage
and notice of any material alteration or non -renewal of any such coverage, and to
require contractors, subcontractors, and any other party in any way involved with
the project contemplated by this Agreement to do likewise.
9. It is acknowledged by the parties of this Agreement that all insurance coverage
required to be provided by Contractor or any subcontractor, and any other party
involved with the project who is brought onto or involved in the project by
Contractor, is intended to apply first and on a primary non-contributing basis in
relation to any other insurance or self insurance available to the City.
10. Contractor agrees to ensure that subcontractors, and any other party involved
With the project who is brought onto or involved in the project by Contractor,
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provide the same minimum insurance coverage required of Contractor.
Contractor agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the
requirements of this Agreement. Contractor agrees that upon request, all
agreements with subcontractors and others engaged in this project will be
submitted to City for review.
11. Contractor agrees that all layers of third party liability coverage required herein,
primary, umbrella and excess, will have the same starting and expiration date.
Contractor agrees further that all other third party coverages required herein will
likewise have concurrent starting and ending dates.
12. Contractor agrees not to self -insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, architect, engineer, or other
entity or person in any way involved in the performance of Work on the project
contemplated by this Agreement to self -insure its obligations to City. If
Contractor's existing coverage includes a deductible or self-insured retention, the
deductible or self-insured retention must be declared to the City. At that time the
City shall review options with the Contractor, which may include reduction or
elimination of the deductible or self-insured retention, substitution of other
coverage, or other solutions.
13. The City reserves the right at any time during the term of this Agreement to
change the amounts and types of insurance required by giving the Contractor 90
days advance written notice of such change. If such change results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increased benefit to City.
14. For purposes of applying insurance coverage only, all contracts pertaining to the
project will be deemed to be executed when finalized and any activity
commences in furtherance of performance under this Agreement.
15. Contractor acknowledges and agrees that any actual or alleged failure on the
part of City to inform Contractor of non-compliance with any insurance
requirement in no way imposes any additional obligations on City nor does it
waive any rights hereunder in this or any other regard.
16. Contractor will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuance to
this Agreement. This obligation applies whether or not the Agreement is canceled
or terminated for any reason. The insurance shall include but not be limited to
products and completed operations and discontinued operations, where
applicable. Termination of this obligation is not effective until City executes a
written statement to that effect.
17. Contractor agrees to waive its statutory immunity under any workers'
compensation statute or similar statute, in relation to the City, and to require all
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subcontractors and any other person or entity involved in the project
contemplated by this Agreement to do likewise.
18. Requirements of specific coverage features are not intended as limitations on
other requirements or as a waiver of any coverage normally provided by any
given policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue, and is not intended by any party
or insured to be all-inclusive.
19. Any provision in any of the construction documents dealing with the insurance
coverage provided pursuant to these requirements, is subordinate to and
superseded by the requirements contained herein. These insurance
requirements are intended to be separate and distinct from any other provision in
this Agreement and are intended by the parties to be interpreted as such.
20. All liability coverage provided according to these requirements must be endorsed
to provide a separate aggregate limit for the project that is the subject of this
Agreement and evidencing products and completed operations coverage for not
less than two years after issuance of a final certificate of occupancy by all
appropriate government agencies or acceptance of the completed work by City.
21. Contractor agrees to be responsible for ensuring that no contract used by any
party involved in any way with the project reserves the right to change City or
Contractor for the cost of additional insurance coverage required by this
Agreement. Any such provisions are to be deleted with reference to City. It is not
the intent of City to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against City for payment of premiums
or other amounts with respect thereto.
22. Contractor agrees to obtain and provide to City a copy of Professional Liability
coverage for Architects or Engineers on this project through Contractor. City shall
determine the liability limit.
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EXHIBIT B
LANDSCAPE STRUCTURES INC.
SDS 12-095
landscape
OX 86
MINNEAPOLIP.O.
55486-0395
jbkstructuresry
PURCHASE ORDERS/CONTRACTS TO:
LANDSCAPE STRUCTURES, INC.
601 7TH ST. SOUTH,
DELANO, MN 55328
Bill To: (Please fill in as necessary) Ship To: (Please fill in as necessary)
J.eremv...L.aurentowski... ........
Park *& Recreation Dept
u.IM Nil -Fin
This quote qood until 30 days from date of this proposal:
OPTION 1 REVISED
We assume DIRECT BURY on all jobs unless otherwise advised by client.
Proposal for materials only, FOB jobsite, NO assembly, NO offloading.
.............. ............ ....__...... ._ ........_... _..._._........ ._..__..._..... .:......_ .,.. ....-.__... .............. _ ._....._..._.--_
We are D/eased to submit this nunte to sunniv the fn1lnwin0 items
Proposal
Proposal No.
Acct Code:
Date:
Resale #: I
Location
Terms: NET 30 FROM INVOICE
DATE
01.50% FINANCE CHARGE PER
MONTH IMPOSED AFTER 30 DAYS
OF INVOICE DATE
(Terms Subject to credit approval by LSI)
OTY ITEM NO. DESCRIPTION Unit Wt PRICE/UNIT LBS. Wt EXTENDED AMT
1 76395-1-2
NetPlex for 5-12 year olds w/ swings
3,08
$45,174.00
3,08
$45,174.0
1 76395-1-2
PlayShaper structure for 2-5 year olds
1,119
$11,417.00
1,119
$11,417.0
1 Discount
Reference HGACBuy contract #PR11-12
-$3,395.4
-$3,395.4
I
Installation
Installation of new equipment 76395-1-2
$21,788.0
$0.0
Site Work
Supply/install new concrete ramp for ADA
$935.0
$0.0
Surfacing
Supply/install new wood fiber surfacing
$13,435.0
$0.0
Mise
Fencing/ on-site storage container
$2,750.0
$0.0
Safety Audit
Third Party inspection w/ drop test
$1,210.00
$0.0
Install/site work/etc. cost included
$40,118.00
$0.0
I
I
Freight is estimate only.Sl2
i
i
ecial Notes:
SAO
1 BOND
Payment bond
$3,006.29
0
$3,006.2
Total Weight:
4199
LANDSCAPE STRUCTURES INC.
CUSTOMER RECEIPT OF AN ORDER ACKNOWLEDGMENT
CONSTITUTES SUCH APPROVAL.
ACCEPTED BY DATE
CAROLYNN JONES
RECWEST OUTDOOR PRODUCTS, INC. (818) 735-3838
REPRESENTATIVES OF LSI
Subtotal Material:
Sales Tax :
103.441
370