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HomeMy WebLinkAbout*AGMT - Window World San Diego, Inc. • 5 CITY OF SEAL BEACH REDEVELOPMENT AGENCY WINDOW AND DOOR INSTALLATION AGREEMENT This Window and Door Installation Agreement ( "Agreement ") is made and entered into this 23rd day of April , 2007 by and between the City of Seal Beach Redevelopment Agency ( "Agency ") and Window World San Diego Inc. ( "Contractor "). . RECITALS. A. Contractor desires to perform and assume responsibility for the provision of certain work for the Agency. Contractor represents that it is experienced in providing such work to public clients, and is familiar with the scope of work of Agency. B. Agency desires to engage Contractor to render the work for the project(s) ( "Project(s) ") as set forth in this Agreement. THE PARTIES HEREBY AGREE AS FOLLOWS: 1. Scope of Work. Contractor promises and agrees to furnish to the Agency all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the project services necessary for the Project ( "Work "). The Work is more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. In the event of any discrepancy between the terms of this Agreement and the terms of Exhibit "A ", the terms of this Agreement shall control. All Work shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Term. The term of this Agreement shall be from April 23, 2007 to August 30, 2007, unless earlier terminated as provided herein. Contractor shall complete the Work within the term of this Agreement, and shall meet any other established schedules and deadlines. The term may be extended by mutual consent of both parties. Page 1 of 11 • 3. Responsibilities of Contractor. 3.1 Control and Payment of Subordinates; Independent Contractor. The Work shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Work subject to the requirements of this Agreement. Agency retains Contractor on an independent contractor basis and not as an employee. Any additional personnel performing the Work under this Agreement on behalf of Contractor shall also not be employees of Agency and shall at all times be under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Work under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2 Schedule of Work. Contractor shall perform the Work expeditiously, within the term of this Agreement, and in accordance with the "Completion Time" as set forth in Exhibit "A ", or as may be revised jointly by the Agency and Contractor after execution of this agreement. In order to facilitate Contractor's conformance with the Schedule, Agency shall respond to Contractor's submittals in a timely manner. 3.3 Conformance to Applicable Requirements All work prepared by Contractor shall be subject to the approval of Agency. 3.4 Agency's Representative. The Agency hereby designates Lee Whittenberg or his designee, to act as its representative for the performance of this Agreement ( "Agency's , Representative "). Agency's Representative shall have the power to act on behalf of the Agency for all purposes under this Contract. Contractor shall not accept direction from any person other than the Agency's Representative or his or her designee. 3.5 Contractor's Representative. Contractor hereby designates Ken Farzin, President, or his designee, to act as its representative for the performance of this Agreement ( "Contractor's Representative "). Contractor's Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor's Representative shall supervise and direct the Page 2 of 11 • • Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. 3.6 Standard of Care. Contractor shall perform all Work under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by contractors in the same discipline in the State of California. Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Any employee who is determined by the Agency to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Work in a manner acceptable to the Agency, shall be promptly removed from the Project by the Contractor and shall not be re- employed to perform any of the Work or to work on the Project. 3.7 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Work, including all Cal /OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the performance of the Work. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Agency, Contractor shall be solely responsible for all costs arising therefrom. Contractor shall defend, indemnify and hold Agency, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.8 Insurance. 3.8.1 Time for Compliance. Contractor shall not commence Work under this Agreement until it has provided evidence satisfactory to the Agency that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the Agency that the subcontractor has secured all insurance required under this section. Page 3 of 11 • • 3.8.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (1) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employers' Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (2) Minimum Limits of Insurance. Contractor shall maintain limits no Tess than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Code of the State of California. Employers Liability limits of $1,000,000 per accident for bodily injury or disease. 3.8.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the Agency to add the following provisions to the insurance policies: (1) General Liability. The general liability policy shall be endorsed to state that: (I) the Agency, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the Work or operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (ii) the insurance Page 4 of 11 • • coverage shall be primary insurance as respects the Agency, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Any insurance or self- insurance maintained by the Agency, its directors, officials, officers, employees, agents and volunteers shall be excess of the Contractor's insurance and shall not be called upon to contribute with it. (2) Automobile Liability. The automobile liability policy shall be endorsed to state that: (I) the Agency, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Contractor or for which the Contractor is responsible; and (ii) the insurance coverage shall be primary insurance as respects the Agency, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying coverage. Any insurance or self- insurance maintained by the Agency, its directors, officials, officers, employees, agents and volunteers shall be excess of the Contractor's insurance and shall not be called upon to contribute with it. (3) Workers' Compensation and Employers Liability Coverage. If requested by the Agency the insurer shall agree to waive all rights of subrogation against the Agency, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (4) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (I) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Agency; and (ii) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Agency, its directors, officials, officers, employees, agents and volunteers. 3.8.4 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Agency, its directors, officials, officers, employees, agents and volunteers. Page 5 of 11 • • 3.8.5 Deductibles and Self- Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Agency. Contractor shall guarantee that, at the option of the Agency, either: (1) the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the Agency, its directors, officials, officers, employees, agents and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.8.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the Agency. 3.8.7 Verification of Coverage. Contractor shall furnish Agency with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Agency. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the Agency if requested. All certificates and endorsements must be received and approved by the Agency before work commences. The Agency reserves the right to require complete, certified copies of all required insurance policies, at any time. 4. Fees and Payments. 4.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Work rendered under this Agreement as set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed $99,194.00. 4.2 Payment of Compensation. Contractor shall submit to Agency a payment statement which indicates completion of work performed in accordance with the payment schedule in Exhibit "A ". Agency shall, within 30 days of receiving such statement, review the statement and pay all approved charges thereon. Page 6 of 11 . . • • 4.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized by the Agency. 5. Termination Agency may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Contractor shall be compensated only for that Work which has been adequately rendered to Agency, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause. If this Agreement is terminated as provided herein, Agency may require Contractor to provide all Documents and Data and other information of any kind prepared by Contractor in connection with the performance of Work under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request. 6. Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address: CONTRACTOR: Window World San Diego, Inc. Attn: Ken Farzin, President 510 Corporate Drive, Suites D & E Escondido, CA 92029 AGENCY: Redevelopment Agency of Seal Beach Attn: Lee Whittenberg Development Services Department 211 Eighth Street Seal Beach, CA 90740 Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. Page 7 of 11 • • 7. Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party actual attorney's fees and all other costs incurred in connection with such action. 8. Indemnification. Contractor shall defend, indemnify and hold the Agency, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts, omissions or willful misconduct of Contractor, its officials, officers, employees, agents, Contractors and contractors arising out of or in connection with the performance of the Work, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Contractor shall defend, at Contractor's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Agency, its directors, officials officers, employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against Agency or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse Agency and its directors, officials, officers, employees, agents and /or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Agency, its directors, officials, officers, employees, agents or volunteers. 9. Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 10. Governing Law. This Agreement shall be governed by the laws of the State of California. 11. Time of Essence. Time is of the essence for each and every provision of this Agreement. Page 8 of 11 .. • • 12. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 13. Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Agency shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of Agency, during the term of his or her service with Agency, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 14. Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employ- ment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 15. Labor Certification. By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work. 16. Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that Page 9 of 11 04/11/2007 09:38 562 - 4308763 PAGE 10/11 . Contract Agreement— Leisure WOrfd Window Replacement Program Seal Beach Redevelopment Agency and Window World San Diego Inc. April 23, 2007 16. Authority to Enter Agreement Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and 'authority to make this Agreement and bind each respective Party. SEAL BEACH REDEVELOPMENT AGENCY WINDOW WORLD SAN DIEGO, INC. ie. (T..... By_ By: Greg Be bien Ken Farzin Its Interim E utive Director Its President A ffest :: By: Its By. . i da Devine, Agency Clerk Approved as to Form: City of seal Beach By: 1 APR 1 6 A07 Quinn Barrow, Agency Attorney Department of Development services Contract Agreement.LW Wrndow Replacement Program 9