HomeMy WebLinkAboutPlay Smart Surfacing, Inc. CONTRACTOR AGREEMENT
Play Smart Surfacing,Inc
THIS CONTRACTORS AGREEMENT("Agreement") is made and entered into this 27th day of
March 2012 ("Effective Date") by and between the CITY OF GRAND TERRACE ("City"), a public
entity,and PLAY SMART SURFACING,INC.,("Contractor"),a California Corporation.
I. Scope of Services. City agrees to retain Contractor and Contractor does hereby retain and
agree to provide the services more particularly described in Exhibit "A", "Scope of Services"
("Services"), attached hereto and incorporated herein by reference, in conjunction with Rubberized Play
Surface Repairs at the City of Grand Terrace Child Care Facility. ("Services").
2. Term. This Agreement shall be effective on the date first written above unless otherwise
provided in Exhibit"A" Scope of Services and the Agreement shall remain in effect until December 31,
2012,unless otherwise terminated pursuant to the provisions herein.
3. Compensation/Payment Contractor shall perform the Services under this Agreement for
the total sum not to exceed SIX THOUSAND THREE HUNDRED NINETY EIGHT DOLLARS AND
FOUTY EIGHT CENTS($6,398.48) Payment shall be made in accordance with City's usual accounting
procedures upon receipt and approval of an itemized invoice setting forth the services performed. The
invoices shall be delivered to City at the address set forth in Section 4,hereof.
4. Notices.Any notices required to be given hereunder shall be in writing and shall be personally
served or given by mail. My notice given by mail shall be deemed given when deposited in the United
States Mail,certified and postage prepaid,addressed to the party to be served as follows:
To City To
City of Grand Terrace Play Smart Surfacing,Inc
22795 Barton Rd.Bldg.B 1125 Research Dr. Suite `A"
Grand Terrace,CA 92313 Redlands,CA 92374
5. Prevailing Wage. If applicable, Contractor and all subcontractors are required to pay the
general prevailing wage rates of per diem wages and overtime and holiday wages determined by the
Director of the Department of Industrial Relations under Section 1720 et seq. of the California Labor
Code and implemented the City Council of the City of Grand Terrace. The Director's determination is on
file and open to inspection in the office of the City Clerk and is referred to and made a part hereof; the
wage rates therein ascertained, determined, and specified are referred to and made a part hereof as though
fully set forth herein.
6. Contract Administration. A designee of the City will be appointed to administer this
Agreement on behalf of City and shall be referred to herein as Contract Administrator.
7. Standard of Performance. While performing the Services, Contractor shall exercise the
reasonable care and skill customarily exercised by reputable members of Contractors in the Metropolitan
Southern California Area, and shall use reasonable diligence and best judgment while exercising its skill
and expertise.
8. Personnel. Contractor shall furnish all personnel necessary to perform the Services and shall
be responsible for their performance and compensation. Contractor recognizes that the qualifications and
experience of the personnel to be used are vital to Contractor and timely completion of the Services. The
key personnel listed in Exhibit"B"attached hereto and incorporated herein by this reference and assigned
to perform portions of the Services shall remain assigned through completion of the Services, unless
otherwise mutually agreed by the parties in writing, or caused by hardship or resignation in which case
substitutes shall be subject to City approval.
9. Assignment and Subcontracting.Neither party shall transfer any right, interest,or obligation
in or under this Agreement to any other entity without prior written consent of the other party. In any
event, no assignment shall be made unless the assignee expressly assumes the obligations of assignor
under this Agreement, in writing satisfactory to the parties. Contractor shall not subcontract any portion
of the work required by this Agreement without prior written approval by the responsible City's Contract
Administrator. Subcontracts, if any, shall contain a provision making them subject to all provisions
stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section
13. Contractor acknowledges that any transfer of rights may require City Manager and/or City Council
approval.
10. Independent Contractor. In the performance of this Agreement, Contractor and his
employees, subcontractors and agents, shall act in an independent capacity as independent contractors,
and not as officers or employees of the City or the City of Grand Terrace. Contractor acknowledges and
agrees that the City has no obligation to pay or withhold state or federal taxes or to provide workers'
compensation or unemployment insurance to Contractor to Contractors employees, subcontractors and
agents. Contractor as an independent contractor shall be responsible for any and all taxes that apply to
Contractor as an employer.
11. Pers Eligibility Indemnity. In the event that Contractor or any employee, agent, or
subcontractor of Contractor providing services under this Agreement claims or is determined by a court of
competent jurisdiction or the California Public Employees Retirement System("PERS")to be eligible for
enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless
City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and
interest on such contributions,which would otherwise be the responsibility of City.
Notwithstanding any other agency,state or federal policy,rule,regulation,law or ordinance to the
contrary, Contractor and any of its employees, agents, and subcontractors providing service under this
Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any
compensation, benefit, or any incident of employment by City, including but not limited to eligibility to
enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for
employer contribution and/or employee contributions for PERS benefits.
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12 Indemnifications.
12.1 Indemnity. Except as to the sole negligence or willful misconduct of the City,Contractor
shall defend, indemnify and hold the City,and its officers,employees and agents, harmless from any and
all loss, damage, claim for damage, liability, expense or cost, including attorneys' fees, which arises out
of or is in any way connected with the performance of work under this Agreement by Contractor or any of
the Contractor's employees, agents or subcontractors and from all claims by Contractor's employees,
subcontractors and agents for compensation for services rendered to in the performance of this
Agreement, notwithstanding that the City may have benefitted from their services. This indemnification
provision shall apply to any acts or omissions,willful misconduct or negligent conduct, whether active or
passive,on the part of Contractor or of Contractor's employees, subcontractors or agents.
12.2 Attorney's Fees. The parties expressly agree that any payment, attorneys' fees, costs or
expense that the City incurs or makes to or on behalf of an injured employee under the City's self-
administered workers'compensation is included as a loss,expense or cost for the purposes of this Section,
and that this Section shall survive the expiration or early termination of the Agreement.
13. Insurance.
13.1 General Provisions. Prior to the City's execution of this Agreement, Contractor shall
provide satisfactory evidence of, and shall thereafter maintain during the term of this Agreement, such
insurance policies and coverage's in the types, limits, forms and ratings required herein. The rating and
required insurance policies and coverage's may be modified in writing by the City's Risk Manager or
City Attorney,or a designee,unless such modification is prohibited by law.
13.1.1 Limitations. These minimum amounts of coverage shall not constitute any limitation or
cap on Contractor's indemnification obligations under Section 12 hereof.
13.1.2 Ratings. Any insurance policy or coverage provided by Contractor as required by this
Agreement shall be deemed inadequate and a material breach of this Agreement, unless such policy or
coverage is issued by insurance companies authorized to transact insurance business in the State of
California with a policy holder's rating of A-or higher and a Financial Class of VII or higher.
13.1.3 Cancellation. The policies shall not be canceled unless thirty (30) days prior written
notification of intended cancellation has been given to City by certified or registered mail, postage
prepaid.
13.1.4 Adequacy. The City, its officers, employees and agents make no representation that the
types or limits of insurance specified to be carried by Contractor pursuant to this Agreement are adequate
to protect. If Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage as deems adequate,at Contractor's sole expense.
13.2 Workers' Compensation Insurance: By executing this Agreement, certifies that
Contractor is aware of and will comply with Section 3700 of the Labor Code of the State of California
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requiring every employer to be insured against liability for workers' compensation, or to undertake self-
insurance before commencing any of the work. Contractor shall carry the insurance or provide for self-
insurance required by California law to protect said Contractor from claims under the Workers'
Compensation Act. Prior to City's execution of this Agreement,Contractor shall file with City either(1)a
certificate of insurance showing that such insurance is in effect,or that Contractor is self-insured for such
coverage, or (2) a certified statement that Contractor has no employees, and acknowledging that if
Contractor does employ any person,the necessary certificate of insurance will immediately be filed with
City. Any certificate filed with City shall provide that City will be given ten (10) days prior written
notice before modification or cancellation thereof.
13.3 Commercial General Liability and Automobile Insurance. Prior to City's execution of
this Agreement, Contractor shall obtain, and shall thereafter maintain during the term of this Agreement,
commercial general liability insurance and automobile liability insurance as required to insure against
damages for personal injury, including accidental death, as well as from claims for property damage,
which may arise from or which may concern operations by anyone directly or indirectly employed by,
connected with, or acting for or on behalf of Contractor. The City and the City, and its officers,
employees and agents, shall be named as additional insured's under the Contractor's insurance policies.
13.3.1 Contractor's commercial general liability insurance policy shall cover both bodily injury
(including death) and property damage (including, but not limited to, premises operations liability,
products-completed operations liability, independent 's liability, personal injury liability, and contractual
liability) in an amount not less than $1,000,000 per occurrence and a general aggregate limit in the
amount of not less than$2,000,000.
13.3.2 Contractors automobile liability policy shall cover both bodily injury and property damage
in an amount not less than $500,000 per occurrence and an aggregate limit of not less than $1,000,000.
All of Contractor's automobile and/or commercial general liability insurance policies shall cover all
vehicles used in connection with Contractor's performance of this Agreement, which vehicles shall
include, but are not limited to, owned vehicles, leased vehicles, Contractor's employee vehicles, non-
owned vehicles and hired vehicles.
13.3.3 Prior to City's execution of this Agreement, copies of insurance policies or original
certificates and additional insured endorsements evidencing the coverage required by this Agreement, for
both commercial general and automobile liability insurance, shall be filed with City and shall include the
City and its officers, employees and agents, as additional insured's. Said policies shall be in the usual
form of commercial general and automobile liability insurance policies, but shall include the following
provisions:
It is agreed that the City of Grand Terrace and its officers, employees and agents, are
added as additional insures under this policy, solely for work done by and on behalf of
the named insured for the City of Grand Terrace.
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13.4 Subcontractors' Insurance. Contractor shall require all of its subcontractors to carry
insurance, in an amount sufficient to cover the risk of injury, damage or loss that may be caused by the
subcontractors' scope of work and activities provided in furtherance of this Agreement, including, but
without limitation, the following coverage's: Workers Compensation, Commercial General Liability,
Errors and Omissions, and Automobile liability. Upon City's request, Contractor shall provide City with
satisfactory evidence that Subcontractors have obtained insurance policies and coverage's required by this
section.
14. Business Tax. Contractor understands that the Services performed under this Agreement
constitutes doing business in the City of Grand Terrace, and Contractor agrees that Contractor will
register for and pay a business tax pursuant to Chapter 5.04 of the Grand Terrace Municipal Code and
keep such tax certificate current during the term of this Agreement.
15. Time of Essence. Time is of the essence for each and every provision of this Agreement.
16. City's Right to Employ Other. City reserves the right to employ other in connection with
the Services.
17. Solicitation. Contractor warrants that they have not employed or retained any
person or City to solicit or secure this Agreement,nor has it entered into any agreement or understanding
for a commission, percentage, brokerage, or contingent fee to be paid to secure this Agreement. For
breach of this warranty, City shall have the right to terminate this Agreement without liability and pay
only for the value of work has actually performed,or, in its sole discretion,to deduct from the Agreement
price or otherwise recover from Contractor the full amount of such commission,percentage,brokerage or
commission fee. The remedies specified in this section shall be in addition to and not in lieu of those
remedies otherwise specified in this Agreement.
18. General Compliance with Laws. Contractor shall keep fully informed of federal,state and
local laws and ordinances and regulations which in any manner affect those employed by Professional, or
in any way affect the performance of services by Contractor pursuant to this Agreement. Contractor shall
at all times observe and comply with all such laws, ordinances and regulations, and shall be solely
responsible for any failure to comply with all applicable laws,ordinances and regulations.
19. Amendments. This Agreement may be modified or amended only by a written Agreement
and/or change order executed by the Contractor and the City.
20. Termination. City, by notifying Contractor in writing, shall have the right to terminate any
or all of professional's services and work covered by this Agreement at any time, with or without cause.
In the event of such termination, Contractor may submit s final written statement of the amount of
Contractor's services as of the date of such termination based upon the ratio that the work completed bears
to the total work required to make the report complete, subject to the City's rights under Sections 16 and
21 hereof. In ascertaining the work actually rendered through the termination date, City shall consider
completed work, work in progress and complete and incomplete reports and other documents only after
delivered to City.
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20.1 Other than as stated below, City shall give Contractor thirty (30) days prior written notice
prior to termination.
20.2 City may terminate this Agreement upon fifteen (15) days written notice to Contractor, in
the event:
20.2.1 Contractor substantially fails to perform or materially breaches the Agreement; or
20.2.2 City decides to abandon or postpone the Services.
21. Offsets. Contractor acknowledges and agrees that with respect to any business tax or
penalties thereon, utility charges, invoiced fee or other debt which Contractor owes or may owe to the
City, City reserves the right to withhold and offset said amounts from payments or refunds or
reimbursements owed by City to Contractor. Notice of such withholding and offset shall promptly be
given to by City in writing. In the event of a dispute as to the amount owed or whether such amount is
owed to the City,City will hold such disputed amount until either the appropriate appeal process has been
completed or until the dispute has been resolved.
22. Successors and Assigns. This Agreement shall be binding upon City and its successors and
assigns, and upon Contractor and its permitted successors and assigns, and shall not be assigned by,
Contractor either in whole or in part,except as otherwise provided in paragraph 9 of this Agreement.
23. Governing Law,Venue, Dispute Resolution and Attorneys' Fees. This Agreement shall
be governed by and construed in accordance with laws of the State of California. Prior to commencing
suit in a court of competent jurisdiction, any controversy, dispute or claim arising out of the Agreement
shall first be submitted to an alternative dispute resolution process as set forth in Section 24 herein. Any
action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or
rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of
San Bernardino, State of California, and the parties hereby waive all provisions of law providing for a
change of venue in such proceedings to any other county. In the event either party hereto shall bring suit
to enforce any term of this Agreement or to recover any damages for and on account of the breach of any
term or condition of this Agreement, it is mutually agreed that the prevailing party in such action shall
recover all costs thereof,including reasonable attorneys'fees,to be set by the court in such action.
24. Alternative Dispute Resolution. hi the event of any controversy,dispute or claim arising
out of or relating to this Agreement,the parties hereto shall consult and negotiate with each other and,
recognizing their mutual interest,attempt to reach a solution satisfactory to both parties. If they do not
reach settlement within a period of 60 days,the matter shall be submitted to an alternative dispute
resolution process,either nonbinding arbitration or mediation,("Process")by written notice from either
party to the other. The parties shall meet and confer in good faith and select a Process and an arbitrator or
a mediator that is agreeable to both sides. The selected Process shall be completed no later than 120 days
("Process Period")after tender of the aforementioned written notice,unless the Parties mutually agree to
an extension of the Process Period. If the matter is not successfully resolved by the selected Process,
within the Process Period,the parties are free to commence litigation in a court of competent jurisdiction
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as defined in Section 23 herein. Any litigation commenced without both parties' consent prior to the end
of the Process Period, shall be subject to a stay until the end of the Process Period.The Parties further
agree to equally bear the cost of the Process.
25. Nondiscrimination. During Contractor's performance of this Agreement, Contractor shall
not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical
disability, mental disability, medical condition, including the medical condition of Acquired Immune
Deficiency Syndrome(AIDS)or any condition related thereto,marital status,sex,or sexual orientation, in
the selection and retention of employees and subcontractors and the procurement of materials and
equipment,except as provided in Section 12940 of the California Government Code. Further, Contractor
agrees to conform to the requirements of the Americans with Disabilities Act in the performance of this
Agreement.
26. Severability. Each provision,term, condition, covenant and/or restriction, in whole and in
part, of this Agreement shall be considered severable. In the event any provision, term, condition,
covenant and/or restriction, in whole and/or in part, of this Agreement is declared invalid,
unconstitutional, or void for any reason, such provision or part thereof shall be severed from this
Agreement and shall not affect any other provision, term, condition, covenant and/or restriction of this
Agreement,and the remainder of the Agreement shall continue in full force and effect.
27. Authority: The individuals executing this Agreement and the instruments referenced herein
on behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions hereof and thereof.
28. Entire Agreement: This Agreement constitutes the fmal, complete, and exclusive statement
of the terms of the agreement between the parties pertaining to the subject matter of this Agreement, and
supersedes all prior and contemporaneous understandings or agreements of the parties. Neither party has
been induced to enter into this Agreement by, nor is neither party relying on, any representation or
warranty outside those expressly set forth in this Agreement.
29. Interpretation. City and Contractor acknowledge and agree that this Agreement is the
product of mutual arms-length negotiations and accordingly,the rule of construction,which provides that
the ambiguities in a document shall be construed against the drafter of that document, shall have no
application to the interpretation and enforcement of this Agreement.
29.1 Titles and captions are for convenience of reference only and do not define, describe or
limit the scope or the intent of the Agreement or any of its terms. References to section numbers are to
sections in the Agreement unless expressly stated otherwise.
29.2 This Agreement shall be governed by and construed in accordance with the laws of the
State of California in effect at the time of the execution of this Agreement.
29.3 In the event of a conflict between the body of this Agreement and Exhibit"A"("Scope of
Services")hereto,the terms contained in Exhibit"A"shall be controlling.
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30. Exhibits. The following exhibits attached hereto are incorporated herein to this Agreement
by this reference:
Exhibit"A"- Scope of Services and fees
Exhibit"B"-Key Personnel
IN WITNESS WHEREOF City and Contractor have caused this Agreement to be duly executed
the day and year first above written.
THE CITY OF GRAND TERRACE,
A public body
By: /
Be ty . Adams
City Manager
Play Smart Surfacing,Inc.
Atte
racey M e k, By:
City Clerk
[Printed Name]
APPROVED AS TO FORM: U
[Title]
'chard L.Adams H
City Attorney
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ATTACHMENT NO. 1
1
PLAY 1 } sun CXNG, XNC
RECEIVED
March 1,2012 MAR 0 5 2012
DEPL OF BUILDING SAFETY
Richard Shields
City of Grand Terrace
22795 Barton Road, Suite B
Grand Terrace, CA 92313
City of Grand Terrace, Bid No.2012-01, Play Surface Repairs
Dear Mr. Shields:
First of all,I wanted to thank you for allowing us to bid on your project. After carefully reviewing your
letter sent on February 23,2012 and the bid results,I understand your concern with the price we provided in the
bid submittal. Please let me assure there is nothing to worry about. We have material and prevailing wages
covered,and still making my desirable profit.We are a local company and not much travel time.Also,we buy
our materials in bulk so we get special pricing.My crews are best of the best which allow us to complete the
project in a fast pace,this will keep labor down. Also your project is what we call a desirable project which
allow us to give you special pricing. With all this combine is the reason we were the lowest bidder.
I am not one to talk about my competitors,but pricing in the industry has been high for the past years.It's time
to bring it down;a little something about the other bidders. Spectra Turf and Tot Turf are huge companies that
have lots of over priced overhead. Gotham is not a surfacing company but a landscape company so he received
a quote and marked it up.
Like I said before,rest assure that we will be the best decision you will make when awarding this project to Play
Smart Surfacing.
Since elly,y,/
1� Alzaga
CE /Founder VVV
1125 Research Drive Ste A. Redlands CA 92374 - (909) 799-8100/ FAX (909) 799-8120
EXHIBIT "A"
iMaS iMC
DATE 2/13/2012
Quotation C 1
1 Research Dr. Ste. A Quotation valid until: 4)13/2012
Redlands. CA 92374
Phone(909)799-8100 Fax(909)799-8120
Contractor Lic. 964014
Customer Infomtation Project Information
Attention: Tracey Martinez Project Name: Child Care Playground Surface Repairs
Company Name: City of Grand Terrace Address: 22400 Barton Road, Suite 200
Street Address: 22795 Barton Road City,ST ZIP: Grand Terrace,CA 92313
City,ST ZIP: Grand Terrace, CA 92313 Phone: 909-783-0994
Phone:
Fax:
Emailmail. Email:
Square Scope of Work Color Unit Price Amount
Fontate
Play Structure Playground Area-Cut Back 12"from the
144 perimeter curbing and remove&dispose of PIP. Install new 100%Blue $4.61 $663.98
ribbon 12"wide. _ .—.----
Center Playground-Install 945 sq.ft. @ 1.5"thick re-top 50% Blue/ g5 82 $5,499.33
945 over existing PIP surface. New PIP shall be flush with 50% Black
existing curbing and walkways.
Infant Area-Cut back 12"from perimeter curbing at rear of
playground and remove and dispose of PIP. Install new PIP 100%Blue
51 $4.61 $235.16
ribbon 12"wide. Patch repair existing holes and cracks
throughout the pad.
A714.44
7 TOTAL $6,398A8
Prepared by: "J��� /�Iy�,`/�/�//—J�
Sates Rep: Willi ampos 1(/
Sates Tax included: Yes
Prevailing Wage: Included
QUALIFICATIONS
•Acceptance of this proposal provides the client with an installation agreement or to retain a purchase order andlor contract.
•Perdeion of dimensions,quantities and scope of work is the responsility of the dent or 3rd padie sales representative.
•Any adiusbnents in scope of work(square footage,depth,color change.etc.)will result in a price change.
•Colors will amber to a certain degree,grades in color will vary depending on wheether and layout.
•Fence and secruity guard NOT included unless specified on quote.
•Preparation of base s NOT provided unless stipulated on scope of work.
*Bond/s are NOT included unless requested.
•Head Impact Criters(HIC)testing NOT included unless requested for an additional fee.
•Quote expires within 60 days from date of quote.
if ALL terms and conditions on this quote are satisfactory please sign and fax back (909)799-8120
Date
Signature
EXHIBIT "B"
Key Personnel: Willie Campos
1125 Research Dr.
Redlands, CA. 92374