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HomeMy WebLinkAbout18 - Agreement for Weed Abatement ServicesCITY OF NEWPORT BEACH City Council Staff Report June 10, 2014 Agenda Item No. 18. TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Mike Pisani, Acting Municipal Operations Department Director— (949) 644 -3055, mpisani @newportbeachca.gov PREPARED BY: Maurice Turner PHONE: (949) 644 -3055 TITLE: Approval of Agreement for Weed Abatement Services ABSTRACT: The City utilizes a contractor to perform weed abatement services including preventative and as- needed vegetation removal at 36 locations for erosion protection and fire hazard reduction. RECOMMENDATION: Approve the five -year agreement with Southland Landscape Maintenance for weed abatement services at various City -owned properties at a total not -to- exceed cost of $725,000 (for the five - year period), and authorize the Mayor and City Clerk to execute the agreement. FUNDING REQUIREMENTS: There are adequate funds in Municipal Operations and Fire Department budgets to fund these services this fiscal year, and funds for these services will continue to be budgeted in subsequent fiscal years. DISCUSSION: Since 1999 the Municipal Operations and Fire Departments have worked together to administer a contract with Southland Landscape Maintenance for weed abatement. In accordance with the 2013 California Fire Code (CFC) and City Wildland Urban Interface (WUI) Area Standard for Hazard Reduction, this program currently involves the clearing of weeds and combustible vegetation at thirty - six (36) City -owned properties encompassing approximately 78 acres and side trimming of over 7 miles of road and bikeways. At a minimum, these sites require brush clearance on an annual basis, while some parcels require semi - annual clearing. In addition, the contractor is also used for the clearance of privately -owned properties that are not in compliance with the City's hazard reduction regulations. New parcels may be identified and added to the program as necessary throughout the year. 623 In May, the Department solicited competitive proposals for contractors to perform weed abatement services. Five proposals were received, including two from current landscape maintenance contractors and one from a former landscape maintenance contractor. The proposals were scored by a three - member review panel based on qualifications and experience as well as cost. The total scores and annual costs are below. Igi's Landscaping Pinnacle Landscape Southland Landscape Trugreen Landscape Wade Landscape 79.33 75.56 91.46 73.92 76.06 $97,049.00 $123,014.00 $107,465.00 $135,8163.00 $109,668.00 Southland Landscape Maintenance has been the primary weed abatement contractor for the Fire Department for the last 15 years. The Fire Department directs the weed abatement process by designating areas that require abatement, identifying the specific plant species to be removed, and completing the final inspection once the work has concluded. The contractor's knowledge and expertise of the City's geography (an assortment of slopes, canyons, and culverts) and the City's code requirements enables Southland Landscape Maintenance to mitigate the fire hazards within the City in an expeditious manner. This assists in minimizing the time and effort required in the training and supervision of another landscape company at a similar cost. Additionally, the contract will allow Parks Division staff to utilize Southland Landscape Maintenance on an as- needed basis for special projects, which would include parks renovation activities, or brush clearance in certain areas which are not included in the annual program. Therefore, an agreement with Southland Landscape Maintenance is submitted for Council approval. The term of the agreement is for five (5) years. This agreement includes an annual rate adjustment based in proportion to changes in the Consumer Price Index of a maximum of 2.5% after each 12 month period. ENVIRONMENTAL REVIEW: This action requires no environmental review, as it is not a project pursuant to CEQA. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Agreement for Weed Abatement Services 624 ATTACHMENT A MAINTENANCE SERVICES AGREEMENT WITH BARRON HURLBUT DBA SOUTHLAND LANDSCAPE MAINTENANCE AND INSTALLATION FOR WEED ABATEMENT SERVICES THIS MAINTENANCE SERVICES AGREEMENT ( "Agreement') is made and entered into as of this 11th day of June, 2014 ( "Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and Barron Hurlbut , a sole proprietor, doing business as ('DBA ") SOUTHLAND LANDSCAPE MAINTENANCE AND INSTALLATION ( "Contractor"), whose address is P.O. Box 11437 Costa Mesa, CA 92627, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to perform annual preventative and as- needed clearance trimming, erosion protection, hazard reduction and weed abatement services throughout the City ('Project'). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the maintenance and /or repair services described in this Agreement. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by City for the Project, is familiar with all conditions relevant to the performance of services, and has committed to perform all work required for the compensation specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2019, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Contractor shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). As a material inducement to City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest industry standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest industry r&I standards' shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein, not later than two (2) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. 4. COMPENSATION TO CONTRACTOR 4.1 City shall pay Contractor for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except as otherwise provided herein, no rate changes shall be made during the term of this Agreement without the prior written approval of City. Contractors compensation for all Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Seven Hundred Twenty Five Thousand Dollars and 001100 ($725,000.00), inclusive of the annual adjustments to the billing rates in accordance with the Consumer Price Index as detailed in Section 4.2 below, without prior written amendment to the Agreement. 4.2 Upon the first anniversary of the Effective Date and upon each anniversary of the Effective Date thereafter, the billing rates set forth in Exhibit B ( "Billing Rates ") shall be adjusted in proportion to changes in the Consumer Price Index, subject to the maximum adjustment set forth below. Such adjustment shall be made by multiplying the Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made, and the denominator of which is the value of the Consumer Price Index for the same calendar month Southland Landscape Maintenance and Installation Page 2 626 immediately prior to Effective Date. The Consumer Price Index to be used in such calculation is the "Consumer Price Index, All Items, 1982 -84 =100 for All Urban Consumers (CPI -U) ", for the Los Angeles- Riverside - Orange County Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Billing Rates in effect immediately preceding such adjustment. The maximum adjustment increase to the Billing Rates, for any year where an adjustment is made pursuant to this Section, shall not exceed two and one half percent (2.5 %) of the Billing Rates in effect immediately preceding such adjustment. 4.3 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name and /or classification of employee who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.4 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved in writing in advance by City. 4.5 Contractor shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B and the Letter Proposal. 5. PROJECT MANAGER 5.1 Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Barron Hurlbut to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Contractor, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. Southland Landscape Maintenance and Installation Page 3 627 6. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. City's Parks & Trees Superintendent or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Contractor in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Contractor, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Contractor's Work schedule. 8. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 8.1 Contractor shall use only the standard materials described in Exhibit A, if any, in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed or utilized unless approved in advance and in writing by the Project Administrator. 8.2 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 highest industry standards. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the industry standard. 8.3 Contractor represents and warrants to City that it has, shall obtain and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractors Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. RESPONSIBILITY FOR DAMAGES OR INJURY 9.1 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 subcontractors, or its workers, or anyone employed by either of them. Southland Landscape Maintenance and Installation Page 4 628 9.2 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 Contractor. 9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.4 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. 9.5 Contractor shall perform all 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 Work by Contractor or its agents. 9.6 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. 9.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 10. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are Southland Landscape Maintenance and Installation Page 5 629 limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 11. 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 Contractor on the Project. 12. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Contractor is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Contractor. Control means fifty percent (50 %) or more of the voting power or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. Southland Landscape Maintenance and Installation Page 6 630 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party. Contractor shall, at Contractor's expense, provide such Documents to City upon prior written request. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. RECORDS Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 20. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate Southland Landscape Maintenance and Installation Page 7 631 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. 21. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the Project. 22. CONFLICTS OF INTEREST 22.1 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 Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 22.2 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 Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 23. NOTICES 23.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, 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. 23.2 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Parks & Trees Superintendent Municipal Operations Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 23.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Barron Hurlbut Southland Landscape Maintenance and Installation P.O. Box 11437 Costa Mesa, CA 92627 Southland Landscape Maintenance and Installation Page 8 632 24. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 25. TERMINATION 25.1 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, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 25.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. LABOR 26.1 Contractor shall conform with all applicable provisions of state and federal law including, but not limited to, applicable provisions of the federal Fair Labor Standards Act ( "FLSA ") (29 USCA § 201, et seq.). 26.2 Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give written notice to City, and provide all relevant information. 26.3 Contractor represents that all persons working under this Agreement are verified to be U.S. citizens or persons legally authorized to work in the United States. Southland Landscape Maintenance and Installation Page 9 633 26.4 To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorneys' fees, and other costs of defense by reason of actual or alleged violations of any applicable federal, state and local labor laws or law, rules, and /or regulations. This obligation shall survive the expiration and /or termination of the Agreement. 27. STANDARD PROVISIONS 27.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 27.2 Compliance with all Laws. Contractor shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 27.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 27.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 27.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 27.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 27.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 27.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 27.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to Southland Landscape Maintenance and Installation Page 10 634 this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 27.10 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 27.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 27.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Southland Landscape Maintenance and Installation Page 11 635 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: By:_(JW By: Aaron C. Varp Rush N. Hill, II City Attorney %'09 Mayor ATTEST: Date: Leilani I. Brown City Clerk CONTRACTOR: Barron Hurlbut, a sole proprietor, DBA Southland Landscape Maintenance and Installation Date: Bv: Barron Hurlbut Owner [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Southland Landscape Maintenance and Installation Page 12 636 EXHIBIT A SCOPE OF SERVICES • DESCRIPTION OF PROJECT o Furnish all labor, equipment, materials, and supervision to provide annual preventative and as- needed clearance trimming, erosion protection, hazard reduction, and weed abatement at thirty -six (36) locations throughout the City of Newport Beach. • WORKING HOURS o Normal working hours shall be between the hours of 7:00 a.m. and 4:00 p.m., Monday through Friday. LEVEL OF MAINTENANCE • All work shall be performed in accordance with the HIGHEST INDUSTRY STANDARDS, as stated in the enclosed maintenance specification description. Standards and frequencies may be modified from time to time as deemed necessary by the City for the proper maintenance of the sites. • If, in the judgment of the City, the level of maintenance is less than that specified herein, the City shall, at its option, in addition to or in lieu of other remedies provided herein, withhold appropriate payment from the Contractor until services are rendered in accordance with specifications set forth within this document and providing no other arrangements have been made between the Contractor and the City. Failure to notify of a change and /or failure to perform an item or work on a scheduled day may, at the City's sole discretion, result in deduction of payment for that date, week, or month. Payment will be retained for work not performed until such time as the work is performed to City standard. • The Contractor is required to correct deficiencies within the time specified by the City. If noted deficient work has not been completed, payment for subject deficiency shall be withheld and shall continue to be withheld until deficiency is corrected, without right to retroactive payments. • The Contractor shall perform all Work 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. • SUPERVISION OF CONTRACT o All Work shall meet with the approval of the Project Administrator. Any specific problem area which does not meet the conditions of the specifications set forth herein shall be called to the attention of the Southland Landscape Maintenance and Installation Page A -1 637 Contractor and if not corrected, payment to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. • MAINTENANCE STANDARDS o Contractor shall be responsible for completing one or more of the following types of work on a per - location basis: • Clearance Trimming • Erosion Protection • Hazard Reduction • Weed Abatement o Contractor shall be responsible for completing work to one of the following standards on a per - location basis: • Weed Abatement according to 2013 California Fire Code (CFC), Section 304.1.2 • Clearance Trimming according to City of Newport Beach Wildland Urban Interface Area Standard for Hazard Reduction o Regardless of which standard applies all cuttings, trimmings, or other debris shall be removed from lots, streets, parkways, or alleys. Sidewalks, curbs, and gutters shall be cleaned of debris. All vegetation shall be cut close to the ground with stubble not exceeding two inches (2 "), and if not chopped to a fine dust, it shall be raked and hauled away. No strips or growth shall be left around the outer edges of property or adjacent to fences, curbs, or sidewalks. Machine disking of vegetation is not permitted without prior authorization • PREVENTATIVE MAINTENANCE • Contractor shall provide the City with an annual preventative maintenance schedule detailing work standard to be applied at each location and estimated completion date prior to the start of the work. • City reserves the right to add or delete locations as deemed necessary. I n the event of adding a location to the Scope of Work, the City shall provide the Contractor with the location details and request an annual preventative maintenance cost based on the approved maintenance standard. The Contractor will provide the annual cost in writing to the Project Administrator. No Work shall be performed on the new location until the cost is approved by the Project Administrator. If a location is removed from the schedule, the total annual preventative maintenance cost will be updated to reflect the reduction in service. Southland Landscape Maintenance and Installation Page A -2 638 o City reserves the right to modify maintenance standards as deemed necessary. In the event of a modification of the maintenance standard, the City shall provide the Contractor with notice of the updated maintenance standard in writing. The Contractor may provide a proposed updated annual cost in writing to the Project Administrator for consideration. No Work shall be performed based on the updated maintenance standard until the cost is approved by the Project Administrator and a written amendment to the Agreement is entered. ■ AS- NEEDED MAINTENANCE o When the need for Services on private or public property arises, the City shall request in writing, the necessary Services required in adequate detail. Contractor shall then provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal'). The Letter Proposal shall include the following: • A detailed description of the Services to be provided and work standard to be applied; ■ The estimated number of hours and cost to complete the Services; and • The time needed to finish the specific Project. • City will assess the Letter Proposal to ensure that Services and costs proposed are commensurate with those included in the Schedule of Billing Rates included in Exhibit B to the Agreement. No Services shall be provided until the City has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal. Southland Landscape Maintenance and Installation Page A -3 639 EXHIBIT B SCHEDULE OF BILLING RATES A. Annual Services site # Site Description Work Type Standard Annual Cost $570.00 1 15th Street and Monrovia Ave W CFC $2,100.00 2 19th Street and Balboa Blvd W CFC $175.00 3 2315 Holly Lane W CFC 4 Avon Street Alley W CFC $625.00 $9720.00 5 Back Bay Road C WUI 6 Balboa Blvd and 39th Street W CFC $75.00 7 Balboa Blvd Roadside between Channel W CFC $75.00 Place & River 8 Big Canyon Nature Park H $11,270.00 9 Bonita Canyon and University Bridge W CFC $1,220.00 10 Bonita Creek Park Service Road C WUI $2,125.00 $1,725.00 11 Buck Gully (Lower) H $25,750.00 12 Buck Gully (Middle) H $5,600.00 13 Cliff Drive Nature Park W CFC $920.00 14 Coast Highway (Roadside east of Pelican W CFC Point) 15 Fernleaf Ramp W CFC $870.00 16 Fletcher Jones Bike Trail C WUI $1,070.00 17 Harbor Cove Fire Access Road and Trail C WUI $6,025.00 $8,725.00 18 Harbor View Nature Park W CFC Southland Landscape Maintenance and Installation Page B -1 640 Site # Site Description Work Type Standard Annual Cost 19 Hillside Area Along Coast Highway (North W CFC $2,900.00 of Back Bay View Park) 20 Iris easement W CFC $475.00 21 Jamboree and Bayview Way C WUI $820.00 22 Jamboree and MacArthur (new area) W CFC $2,370.00 23 Jamboree Roadside Apron and Bike Trail W CFC $1,320.00 24 Kings Road (1801 &1811 Kings Rd) W CFC $320.00 25 Mariners Drive cul -de -sac W CFC $1,525.00 26 Mesa Drive (east of Irvine Avenue) W CFC $925.00 27 Newport Dunes bike path W CFC $1,090.00 28 Newport Dunes Slope (Below Coast W CFC $1,070.00 Highway) 29 San Miguel Drive at Big Canyon Reservoir W CFC $570.00 30 Santa Ana Ave E $820.00 31 Santa Ana Ave (South side of roadway) W CFC $370.00 32 South side of Bayside at Carnation and W CFC $290.00 along Fernleaf 33 Spyglass Canyon Park H $8,700.00 34 Spyglass Roadside W CFC $390.00 35 University Drive at Irvine Ave W CFC $670.00 36 Valley Acreage (Near Spyglass Canyon H $4,200.00 Park) (C) Clearance Trimming, (E) Erosion Protection, (H) Hazard Reduction, (W) Weed Abatement (CFC) 2013 California Fire Code (CFC), Section 304.1.2, (WUI) City of Newport Beach Wildland Urban Interface Area Standard for Hazard Reduction Southland Landscape Maintenance and Installation Page B -2 641 B. As- Needed Services Unit Costs Labor per hour, per person $22.00 Debris hauling per yard $35.00 As- Needed Services shall be requested by the City in writing. Contractor shall then provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal'). The Letter Proposal shall include the following: • A detailed description of the Services to be provided and work standard to be applied; • The estimated number of hours and cost to complete the Services; and • The time needed to finish the specific Project. • No Services shall be provided until the City has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal. Southland Landscape Maintenance and Installation Page B -3 642 EXHIBIT C INSURANCE REQUIREMENTS — MAINTENANCE /REPAIR/JANITORIAL SERVICES 1. Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Reguirements. A. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented Southland Landscape Maintenance and Installation Page C -1 643 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self - insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. Southland Landscape Maintenance and Installation Page C -2 644 C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. D. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non - compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self - insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non - Compliance If Contractor or any sub - consultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Contractor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Southland Landscape Maintenance and Installation Page C -3 645