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HomeMy WebLinkAboutAGMT - Miracle Recreation Equipment (Almond Park Tot Lot) � u c,� frhArka ate, eceigtat mei AGREEMENT BETWEEN CITY OF SEAL BEACH AND MIRACLE RECREATION EQUIPMENT COMPANY IN CONNECTION WITH ALMOND PARK TOT LOT THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement ") is made and entered into as 11th day of December , 2001 by and between the CITY OF SEAL BEACH, a municipal corporation ( "City ") and Miracle Recreation Equipment Company, a division of PlayPower Inc., a Iowa corporation ( "Contractor "). RECITALS WHEREAS, City desires to employ the services of Contractor to remove existing play equipment and install new play equipment for the Almond Park Tot Lot in the City; and WHEREAS, Contractor represents that it has the expertise and experience to provide such services. • NOW THEREFORE, and for good consideration, the City and Contractor agree as follows: 1. Compensation. Contractor shall provide the services identified on the "Budget Outline" attached hereto as Exhibit A for an amount not to exceed $54,950.25. 2. Services to be Provided. Contractor shall furnish all labor, materials, tools and equipment for the services identified on Exhibit A, including the removal of existing play equipment and installation of new play equipment for the Almond Park Tot Lot in the City. 2.1 Installation and Safety Specifications Except as otherwise provided herein, all Work shall be done, and the contract shall be perfoiiued, in accordance with the provisions of the most current edition of "STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION" (commonly known as "the GREEN BOOK ") including Supplements, prepared and promulgated by the Southern California Chapter of the American Public Works Association and the Associated General Contractors of California, which specifications are hereinafter referred to as : the "Standard Specifications." All equipment installed shall comply with all applicable American Society for Testing Material (ASTM) and United States Consumer Product Safety Commission (CPSC) standards and requirements. 3. Time of Essence. Time is of the essence in the perfoilliance of this Agreement. All services set forth in Exhibit A, and all playground equipment shall be installed and fully operational in a safe and secure manner by Mav 1. 2002 . FP • 4. Partv Representatives. The City designates the following person to act on the City's behalf: Ross Pounds The Contractor designates the following person to act on Contractor's behalf: Debbie Ouinn 5. Attachments. This Agreement incorporates by reference the following Attachments to this Agreement: Exhibit A: Budget Outline Exhibit B: July 2001 Almond Park Tot Lot Proposal In the event there is an inconsistency between the Proposal and this Agreement, the provisions and temis of this Agreement control. 6. Integration. This Agreement represents the entire understanding of City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with regard to those matters covered by this Agreement. This Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 7. Standard of Performance. Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 8. Performance to Satisfaction of City. Contractor agrees to perfoiiu all work to the satisfaction of City within the time specified. If Contractor's work is not satisfactory in the opinion of City's designated representative, City has the right to take appropriate action, including but not limited to any or all of the following: (i) meeting with Contractor to review the quality of the work and resolve matters of concern; (ii) requiring Contractor to repeat or correct the work at no additional fee until it is satisfactory; (iii) suspending the delivery of new or additional work to Contractor for an indefinite'time; (iv) withholding payment; and (v) terminating this Agreement as hereinafter set forth. City's options set forth herein are non - exclusive, and are in addition to any remedy available at law to City. 9. Prohibition Against Subcontracting or Assignment. Contractor shall not contract with any other entity other than Miracle - Park or Ortco, Inc., to erform in whole or i 1 . V.44 AClceii P 'TURF part the services required hereunder without the express wn en approval of City. I addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether 2 • • for the benefit of creditors or otherwise, without the prior written approval of City. In the event of any unapproved transfer, including in any bankruptcy proceeding, City may void the Agreement at City's option in its sole and absolute discretion. No approved transfer shall release any surety of Contractor of any liability hereunder without the express consent of City. - 10. Insurance. Contractor shall have insurance as follows: • 10.1 General Liability (including premises and operations, contractual liability, personal injury, independent contractors liability): One Million Dollars ($1,000,000.00) Single Limit, per occurrence. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be three times the occurrence limit. 10.2 Automobile Liability (including owned, non - owned, and hired autos): One Million Dollars ($1,000,000.00), Single limit, per occurrence for bodily injury and property damage. 10.3 Employer's Liability One Million Dollars ($ 1,000,000.00) per occurrence for injuries incurred in providing services under this Agreement (if Contractor is required to have per the laws of California). 10.4 Workers Compensation Contractor shall, to the extent required by state law, provide Employee's Insurance Workers' Compensation Insurance for the protection of Contractor's employees. Contractor shall file a certificate of insurance which evidences that Contractor is in compliance with said Worker's Compensation Insurance requirement. Contractor shall require all subcontractors similarly to provide such Workers' Compensation Insurance and certificates of insurance for their respective employees. 10.5 General Requirements. All of Contractor's and its sub- contractor's policies of insurance shall: A. Name City, its officers, officials, employees, agents, representatives and volunteers (collectively hereinafter "City and City Personnel ") as additional insureds and contain no special limitations on the scope of protection afforded to City and City Personnel; B. Be primary insurance and shall provide that any insurance or self- insurance maintained by City or City Personnel shall be in excess of Contractor's insurance and shall not contribute with it; C. Be "occurrence" rather than "claims made" insurance; D. Apply separately: to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; 3 • • E. Be endorsed to state that the insurer shall waive all rights of subrogation against City and City Personnel; and F. Be written by good and solvent insurer(s) admitted to do business in the State of California and acceptable to City. 10.6 Deductibles. Any deductibles or self - insured retentions must be declared to and approved by City prior to the execution of this Agreement by City. 10.7 Notice of Policy Changes. Each such insurance policy shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non - renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by. U.S. mail, certified, or by personal delivery. In addition to such notice provided to City by the insurer, Contractor shall also provide City with thirty (30) days prior written notice, by certified mail return receipt requested, of the suspension, voiding, cancellation, reduction in coverage or in limits, non - renewal, or material change for any reason, of any such insurance policy or policies. 10.8 Evidence of Coverage. Contractor shall fiirnish City with certificates of insurance demonstrating the coverage required by this Agreement which shall be received and approved by City not less than five (5) working days before work commences. The duplicate originals and original endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. The procuring of such insurance or the delivery of duplicate originals and endorsements evidencing the same shall not be construed as a limitation on Contractor's obligation to indemnify City and City Personnel. 11. Indemnification. Contractor shall indemnify, defend, and hold City and City Personnel harmless from and against any and all actions, claims, demands, judgments, attorney's fees, costs, damage to persons or property, penalties, obligations, expenses or liabilities that may be asserted or claimed by any person or entity arising out of the acts, errors, or omissions of Contractor, its employees, agents, representatives or subcontractors in the performance of any tasks or services for or on behalf of City, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel; provided, however, that the Contractor shall not be required to indemnify, defend or hold harmless City or City Personnel against claims arising from the sole active negligence or willful misconduct of City or City Personnel. In connection therewith: 11.1 Contractor shall defend, with Counsel acceptable to City, any action or actions filed in connection with any such claimed damage, injury, penalty, obligation or liability, and shall pay all costs and expenses, including attorney's fees, incurred therewith. 11.2 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such claimed damage, injury, penalty, obligation or liability, Contractor shall defend City and pay 4 • • to City any and all costs and expenses incurred by City in such action or - proceeding, together with actual attorney's fees and expert witness fees. 12. Compliance with Laws. Contractor shall keep fully infoinied of all State and Federal laws and County and Municipal ordinances and regulations which in any manner affect those employed by it or in any way affect the perfoimance of services pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Contractor. Each and every provision required by law to be inserted into this Agreement shall be deemed to be inserted, and this Agreement shall be read and enforced as though they were included. 13. Independent Contractor. Contractor shall perfoiui all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner or employer of Contractor in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from City; and neither Contractor nor any of its employees shall be paid by City any wage or overtime benefit. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or any of the rights a City employee might . otherwise have in the event of termination of employment. 14. Covenant . Against Discrimination. Contractor covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, relation, sex, marital status, national origin, or ancestry, in the performance of this Agreement. Contractor further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) as the same may be amended from time to time. 15. Termination By City. City reserves the right to teuminate this Agreement at any time, with or without cause, upon written notice to Contractor. Upon receipt of any notice of termination from City, Contractor shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Contractor - shall be entitled to compensation for all services rendered prior to receipt of City's . notice of termination and for any services authorized in writing by City thereafter. 16. Waiver. No delay or omission in the exercise of any right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party require the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party 5 •. • of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 17. Legal Actions. The Municipal and Superior Courts of the State of California in the County of Orange shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 18. Attorneys' Fees. If either party to this Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to litigation costs, including actual attorney's fees and expert witness fees. 19. Notices. Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the . second calendar day following dispatch. Notices shall be delivered to the following addresses: To City: Director of Recreation City of Seal Beach 211 Eighth Street Seal Beach, 90740 To Contractor: Debbie Quinn _ K Miracle 13,x, 6481 Orangethorpe Avenue Suite 22 Buena Park, CA 90630 (800) 541 -8897 20. Interpretation: Severability. 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 this. Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 6 •. • 21. Corporate Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing,. (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party. (iii) by so executing this Agreement, such party is foimally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement for Contract Services as of the date first set, forth above. CITY OF ' EAL , AC . A f CONTRACT By: Alle if By: $t • Its: Cif — , na er v Its: --D "71 O"' Atte • By: Ile Its: ij erk - APPROVED AS TO FORM: By: Its: City Attorney .