HomeMy WebLinkAboutAGR-5778.C - NIEVES LANDSCAPE, LLC. - LANDSCAPE MAINTENANCE SERVICESMAINTENANCE SERVICES AGREEMENT
[Landscape Maintenance Servicesl
THIS MAINTENANCE SERVICES AGREEMENT (the "Agreement") is made at
Orange, Califomia, on this _ day of 2025 by and between the CITY
OF ORANGE, a municipal corporation ("City") and NIEVES LANDSCAPE, LLC, a Delaware
limited liability company ("Contractor"), who agree as follows.
1. Services. Subject to the terms and conditions set forth in this Agreement, Contractor
shall provide to the reasonable satisfaction of City the services set forth in Exhibit "A," which is
attached hereto and incorporated herein by this reference. As a material inducement to City to enter
into this Agreement, Conhactor represents and warrants that it has thoroughly investigated and
considered the scope of services and fully understands the difficulties and restrictions in performing
the work. Contractor represents that it is experienced in performing the work and will follow the
highest professional standards in performance of the work. All services provided shall conform to all
federal, state and local laws, rules and regulations and to the best professional standards and practices.
The terms and conditions set forth in this Agreement shall control over any terms and conditions in
Exlibit "A" to the contrary.
Grant Pickering, Landscape Coordinator ("City's Project Manager"), shall be the person to
whom Contractor will report for the performance of services hereunder. It is understood that
Contractor's performance hereunder shall be under the supervision of City's Project Manager (or
his/her designee), that Contractor shall coordinate its sewices hereunder with City's Project Manager
to the extent required by City's Project Manager, and that all performances required hereunder by
Contractor shall be performed to the satisfaction of City's Project Manager and the City Manager.
2. Total Comoensation. Annual Com pensation and Fee Schedule
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed THREE MILLION NINE HLTNDRED NINETY-NINE THOUSAND
NINE HUNDRED SIXTY-ONE DOLLARS and 261100 ($3,999,961.26) without the prior written
authorization of City.
b. The compensation for services perfomed under this Agreement shall be paid
as specified in Exhibit "B."
c. In addition to the scheduled services to be performed by the Contractor, the
parties recognize that additional, unforeseen work and seruices may be required by City's Project
Manager. In anticipation of such contingencies, the sum of THREE HTINDRED NINETY-NINE
THOUSANDNINE HUNDREDNINETY-SIX DOLLARS and 13/100 (S399,996.13) has been added
to the total compensation ofthis Agreement. City's Project Manager may approve the additional work
and the actual costs incurred by the Contractor in performance of additional work or services in
accordance with such amount as City's Project Manager and the Contractor may agree upon in
advance. Said additional work or services and the amount of compensation therefor, up to the amount
of the authorized contingency, shall be memorialized in the form of an Amendment to Agreement
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AGR-5778.C
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approved by the City Manager on a form acceptable to the City Attomey. The Contractor agrees to
perform only that work or those services that are specifically requested by the City's Project Manager.
Any and all additional work and services performed under this Agreement shall be completed in such
sequence as to assure their completion as expeditiously as is consistent with professional skill and care
in accordance with a cost estimate or proposal submitted to and approved by City's Project Manager
prior to the commencement of such services.
d. The total amount of compensation under this Agreement, including
contingencies, shall not exceed FOUR MILLION THREE HUNDRED NINETY-NINE THOUSAND
NINE HUNDRED FIFTY-SEVEN DOLLARS and 391100 (94,399,957.39).
3. Payment.
a. As scheduled services are completed, Contractor shall submit to City an invoice
for the services completed, authorized expenses and authorized extra work actually performed or
incured.
b. All such invoices shall state the basis for the amount invoiced, inciuding
services completed, the number ofhours spent and any extra work performed.
c. City will pay Contractor the amount invoiced within thidy (30) days after the
approval of the invoice.
d, Payment shall constitute payment in full for all services, authorized costs and
authorized extra work covered by that invoice.
4, Change Orders. No payment for extra services caused by a change in the scope or
complexity of work, or for any other reason, shall be made unless and until such extra services and a
price therefor have been previously authorized in writing and approved by City as an amendment to
this Agreement. The amendment shall set forth the changes ofwork, extension oftime, and adjustment
ofthe compensation to be paid by City to Contractor.
5. Licenses. Contractor represents that it and any subcontractors it may engage, possess
any and all licenses which are required under state or federal law to perform the work contemplated
by this Agreement and that Contractor and its subcontractors shall maintain all appropriate licenses,
including a City ofOrange business license, at its cost, during the performance of this Agreement.
6. Independent Contractor. At all times during the term ofthis Agreement, Contractor
shail be an independent contractor and not an employee of City. Ciry shall have the right to control
Contractor only insofar as the result of Confactor's services rendered pursuant to this Agreement.
City shall not have the right to control the means by which Contractor accomplishes services rendered
pursuant to this Agreement. Contractor shall, at its sole cost and expense, fumish all facilities,
materials and equipment which may be required for fumishing services pursuant to this Agreement.
Contractor shall be solely responsible for, and shall indemnifu, defend and save City harmless from
all matters relating to the payment of its subcontractors, agents and employees, including compliance
with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and
regulations of any nature whatsoever. Contractor acknowledges that it and any subcontractors, agents
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or employees employed by Contractor shall not, under any circumstances, be considered employees
of City, and that they shall not be entitled to any ofthe benefits or rights afforded employees of City,
including, but not limited to, sick leave, vacation leave, holiday pay, Public Employces Retirement
System benefits, or health, life, dental, long-term disability or workers' compensation insurance
benefits.
7. Contractor Not Aeent. Except as City may specify in writing, Contractor shall have
no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.
8. Designated Persons. Except as otherwise authorized by City's Project Manager, only
the employees of Contractor shall perform work provided for under this Agreement. It is understood
by the parties that clerical and other nonprofessional work may be performed by persons other than
those designated.
9. Assisnment or Subcontracting. No assignment or subcontracting by Contractor of
any part of this Agreement or of funds to be received under this Agreement shall be of any force or
effect unless the assignment has had the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
10. Term. The term ofthis Agreement shall be for five years (5) years, commencing on
Itily l,2025, and ending on June 30,2030.
11. Time Is of the Essence. Time is of the essence in this A greement. Contractor shall
do all things necessary and incidental to the prosecution ofContractor's work.
12. Reserved.
13. Delavs and Extensions of Time. Contractor's sole remedy for delays outside its
control, other than those delays caused by City, shall be an extension of time. No matter what the
cause of the delay, Contractor must document any delay and request an extension of time in writing at
the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the length
ofthe delay outside Contractor's control. IfContractor believes that delays caused by City will cause
it to incur additional costs, it must specify, in writrng, why the delay has caused additional costs to be
incured and the exact amount of such cost at the time the delay occurs. No additional costs can be
paid that exceed the not to exceed amount stated in Section 2.a, above, absent a written amendment to
this Agreement.
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14, Products of Contractor. The documents, studies, evaluations, assessments, reports,
plans, citations, materials, manuals, technical data, logs, files, designs and other products produced or
provided by Contractor for this A$eement shall become the property ofCity upon receipt. Contractor
shall deliver all such products to City prior to payment for same. City may use, reuse or otherwise
utilize such products without restriction.
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15. Eoual Emolovment ODDortunitY.During the performance of this Agreement,
Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for
emplol.rnent because ofrace, color, religion, sex, national origin, mental or physical disability, or any
other basis prohibited by applicable law. Contractor shall ensure that applicants are employed, and
that employees are treated during employment, without regard to their race, color, religion, sex,
national origin, mental or physical disability, or any other basis prohibited by applicable law. Such
actions shall include, but not be limited to the following: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of
compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Contractor sha1l, in all solicitations and advertisements for employees placed
by, or on behalf of Contractor, state that all qualified applicants will receive consideration for
employment without regard to race, color, religion, sex, national origin, mental or physical disability,
or any other basis prohibited by applicable law.
c. Contractor shall cause the foregoing paragraphs (a) and (b) to be inserted in all
subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not
apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a contractor to influence any decision of City in
which Contractor knows or has reason to know that Contractor, its officers, partners, or employees
have a financial interest as defined in Section 87103 ofthe Government Code.
17 . Indemnitv.
a. To the fullest extent permitted by law, Contractor agrees to indemnifu, defend
and hold City, its City Council and each member thereof, and the officers, officials, agents and
employees of City (collectively the "Indemnitees") entirely harmless from all liability arising out of
(2) Any claim, loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission ofContractor, or person, firm or corporation employed
by Contractor, either directly or by independent contract, including all damages due to loss or theft
sustained by any person, firm or corporation including the Indemnitees, or any of them, arising out o{
or in any way connected with the work or services which are the subject of this Agreement, including
injury or damage either on or off City's property; but not for any loss, injury, death or damage caused
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(l) Any and all claims under workers' compensation acts and other
employee benefit acts with respect to Contractor's employees or subcontractor's employees arising
out ofcontractor's work under this Agreement, including any and all claims under any law pertaining
to Contractor or its employees' status as an independent conhactor and any and all claims under Labor
Code section 1720 related to the payment ofprevailing wages for public works projects; and
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by the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk,
shall indemnift any and all claims, actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or
satisfu any judgment that may be rendered against the Indemnitees, or any of them, in any action, suit
or other proceedings as a result of coverage under this subparagraph.
b. Reserved
c. Except for the Indemnitees, the indemnifications provided in this Agreement
shall not be construed to extend any third party indemnification rights of any kind to any person or
entity which is not a signatory to this Agreement.
d. The indemnities set fodh in this section shall survive any closing, rescission, or
termination of this Agreement, and shall continue to be binding and in full force and effect in
perpetuity with respect to Contractor and its successors.
18. Insurance.
a. Workers' Compensation and Emplover's Liability. Contractor shall carry
workers' compensation insurance as required by law for the protection of its employees during the
progress ofthe work. Contractor understands that it is an independent contractor and not entitled to
any workers' compensation benefits under any City program. Contractor shall also maintain during
the life of this Agreement employer's liability insurance in the amount of One Million Dollars
($ 1,000,000) per accident for bodily injury or disease.
b. General Liability. Contractor shall maintain during the life of this Agreement
the foliowing minimum amount of comprehensive general liability insurance or commercial general
liability insurance: the greater of (1) Four Million Dollars ($4,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover
bodily injury, death and property damage and be written on an occurence basis.
c. Automobile Liabiliry. Contractor shall maintain during the life of this
Agreement, the following minimum amount of automotive liability insurance: the greater of (1) a
combined single limit of One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or
limits carried by or available to Contractor. Said insurance shall cover bodily injury, death and
property damage for all owned, non-owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required
coverage and/or minimum required limits which are applicable to a given loss shall be available to
City. No representation is made that the minimum insurance requirements of this Agreement are
sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that City,
its officers, officials, agents, and employees are declared to be additional insureds under the terms of
the policy, but only with respect to the work performed by Contractor under this Agreement. A policy
endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of
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an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional
insured as a contracting party. The minimum coverage required by Subsection 18.b and c, above, shall
apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the
general or automobile liability minimums set forth below shall be maintained for the duration of the
Agreement.
f. The insurance policies maintained by Contractor shall be primary insurance and
no insurance held or owned by City shall be called upon to cover any loss under the policy. Contractor
will determine its own needs in procurement ofinsurance to cover liabilities other than as stated above.
g. Before Conhactor perfornrs any work or prepares or delivers any materials,
Contractor shall furnish certificates of insurance and endorsements, as required by City, evidencing
the aforementioned minimum insurance coverages on forms acceptable to City, which shall provide
that the insurance in force will not be canceled or allowed to lapse without at least ten (10) days'prior
written notice to City.
h. All insurance maintained by Contractor shall be issued by companies admitted
to conduct the peftinent line of insurance business in California and having a rating of Grade A or
better and Class VII or better by the latest edition ofBest Key Rating Guide.
i. Contractor sha[[ immediately notify City if any required insurance lapses or is
otherwise modified and cease performance of this Agreement unless otherwise directed by City. In
such a case, City may procure insurance or self-insure the risk and charge Contractor for such costs
and any and all damages resulting therefrom, by way of set-off fiom any sums owed Contractor.
j. Contractor agrees that in the event ofloss due to any ofthe perils for which it
has agreed to provide insurance, Contractor shall look solely to its insurance for recovery. Contractor
hereby grants to City, on behalf of any insurer providing insurance to either Contractor or City with
respect to the services ofContractor herein, a waiver ofany right to subrogation which any such insurer
may acquire against City by virtue ofthe payment ofany loss under such insurance.
k. Contractor shall include all subcontractors, ifany, as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor to City for review and
approval. A[1 coverages for subcontractors shall be subject to all of the requirements stated herein.
19. Termination. City may for any reason terminate this Agreement by giving Contractor
not less than five (5) days' written notice of intent to terminate. Upon receipt of such notice,
Contractor shall immediately cease work, unless the notice from City provides otherwise. Upon the
termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all
allowable reimbursements incurred to the date of termination in compliance with this Agreement,
unless termination by City shall be for cause, in which event City may withhold any disputed
compensation. City shall not be liable for any claim of lost profits.
20, Maintenance and InsDection of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete
books, documents, papers, accounting records, and other information (collectively, the "records")
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21. Comnliance with Laws/Back ground.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. The work provided for in this Agreement constitutes a "public works," as that
term is defined in Section 1720 of the Califomia Labor Code, for which prevailing wages must be
paid, to the extent Contractor's employees will perform any work that falls within any of the
classifications for which the Department of Labor Relations of the State of Califomia promulgates
prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall
pay not less than the specified prevailing rates ofwages to all such workers and shall comply with all
statutory requirements thereunder. Statutory provisions for penalties for failure to comply with
prevailing wage laws will be enforced. The general prevailing wage determinations for crafts can be
located on the website of the Department of Industrial Relations (y1Ury-dU.SA€AyDLSD.
Additionally, to perform work under this Contract, Contractor must meet all State registration
requirements and criteria, including project compliance monitoring.
Contractor represents and warrants that it:c.
(1) Has complied and shall at all times during the term of this Agreement
comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders,
including, without limitation, the knmigration Reform and Control Act of 1986 (IRCA); and
(2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of this
Agreement; and
(3) Has properly maintained, and shall at all times during the term of this
Agreement properly maintain, all related employment documentation records including, without
limitation, the completion and maintenance ofthe Form I-9 for each ofContractor's employees; and
(4) Has responded, and shall at all times during the term ofthis Agreement
respond, in a timely fashion to any govemment inspection requests relating to immigration law
compliance and/or Form I-9 compliance and./or worksite enforcement by the Department of Homeland
Security, the Department of Labor, or the Social Security Administration.
d. Contractor shall, upon request ofCity, provide a list ofall employees working
under this Agreement and shall provide, to the reasonable satisfaction of City, verification that all such
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pedaining to the costs of and completion of selices performed under this Agreement. City and its
authorized representatives shall have access to and the right to audit and reproduce any ofContractor's
records regarding the services provided under this Agreement. Contractor shall maintain all such
records for a period of at least three (3) years after termination or compietion of this Agreement.
Contractor agrees to make available all such records for inspection or audit at its offices during normal
business hours and upon three (3) days' notice from City, and copies thereof shall be furnished if
requested.
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employees are eligible to work in the United States. All costs associated with such verification shall
be bome by Contractor. Once such request has been made, Contractor may not change employees
working under this Agreement without written notice to City, accompanied by the verification required
herein for such employees.
e. Contractor shall require all subcontractors to make the same representations and
warranties as set forth herein.
f. IfContractor or subcontractor knowingly employs an employee providing work
under this Agreement who is not authorized to work in the United States, and/or fails to follow federal
laws to determine the status ofsuch employee, that shall constitute a material breach ofthis Agreement
and may be cause for immediate termination olthis Agreement by City.
g. All personnel perlorming any seruices to City under this Contract shall possess
sufficient experience and security records to perform the work at public facilities. Contractor shall
conduct and complete, to City's satisfaction, sufficient background checks to ensure no personnel
performing services under this Contract is listed on the National Sex Offender Public Registry
('NSOPR'). Contractor shall monitor personnel security records to ensure no existing or new
employees performing services under this Contract are added to the NSOPR or convicted ofany cnmes
that would disqualif,i them from adhering to conduct conducive to public safety.
h. All costs associated with the documentation and verification required herein
shall be bome by Contractor. Contractor shall require all subcontractors to provide the same
documentation and verification when hired to perform services under this Contract. City has the right,
in its sole and absolute discretion, to reject any employee of Contractor assigned to perform services
for City, with or without cause, at the time ofsuch assignment or at any time thereafter, and Contractor
shall remove that employee from providing services to City to the extent permitted by law and any
applicable collective bargaining agreement. City's rights under this Article shall not be exercised in
an arbitrary or capricious manner, or with the intent of forcing a termination of this Contmct.
i. Contractor agrees to indemnify and hold City, its officials, and employees
harmless for, of and from any loss, including but not limited to fines, penalties and corrective
measures, City may sustain by reason of Contractor's failure to comply with said laws, rules and
regulations in connection with the performance ofthis Agreement.
22. Governing Law and Venue. This Agreement shall be construed in accordance with
and govemed by the laws ofthe State of Califomia and Contractor agrees to submit to the jurisdiction
of California courts. Venue for any dispute arising under this Agreement shall be in Orange County,
Califomia.
23, Integration. This Agreement constitutes the entire agreement ofthe parties. No other
agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of
any force or effect unless it is in writing and signed by both parties. Any work performed which is
inconsistent with or in violation of the provisions of this Agreement shall not be compensated.
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24, Notice. Except as otherwise provided herein, all notices required under this Agreement
shall be in writing and delivered personally, by e-mail, or by first class mail, postage prepaid, to each
party at the address listed below. Either party may change the notice address by notifuing the other
party in writing. Notices shall be deemed received upon receipt of same or within 3 days of deposit
in the U.S. Mail, whichever is earlier. Notices sent by e-mail shall be deemed received on the date of
the e-mail transmission.
..CONTRACTOR"
Nieves Landscape, LLC
1629 E. Edinger Avenue
Santa Ana, CA, 92705
Attn.: Greg Nieves
Telephone: 7 14-641-307 1
E-Mail: gnieves@nieveslandscape.com
City of Orange
300 E. Chapman Avenue
Orange, CA 92866-1591
Attn.: Grant Pickering
Telephone: 7 14-532-6464
E-Mail: gpickering@cityoforange.org
25. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures kansmitted via facsimile and electronic mail shall have the same effect as
original signatures.
[Remainder of page intentionally left blank; signatures on next page]
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*CITY"
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IN \ryITNESS of this Agreement, the parties have entered into this Agreement as of the year
and day first above written.
*CONTRACTOR""CITY"
NIE\'ES LANDSCAPE, LL a Delaware
limited lia mpany
*By:By
Printed Nam d tevw Daniel R. Slater, Mayor
Title:
L
/
ATTEST:t
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Nathalie Adourian
Senior Assistant City Attorney
The City requires the following signature(s) on behalf of the Contractor:
(I) the Chairman of the Board, the President or a Vice-President, {\! (2) the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or
an Assistant Treasurer. If only one corporate officer exists or one corporate
officer holds more than one corporate office, please so indicate. $
The corporate officer named in a corporate resolution as authorized to enter into
this Agreement. A copy of the corporate resolution, certified by the Secretary
close in time to the execution of the Agreement, must be provided to the City.
Printed
Title:
*ryE
a.-.
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CITY OF ORANGE, a municipal corporation
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EXHIBIT "A"
SCOPE OF SER\'ICES
[Beneath this sheet.]
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EXHIBIT "8"
COMPENSATION FOR SERVICES
[Beneath this sheet.]
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