CON20-0029 - Landscape Service Agreement for Bear Mountain Boulevard and Park Landscape Maintenance (Ecoasis)

1.0 Definitions

1.1

• “Agreement” means the Contract.
• “City of Langford” or “City” means the Corporation of the City of Langford and any person authorized to act for or on behalf with respect to any matter under this Request for Proposal.
• “City Contract Manager” means the City of Langford Manager of Parks and Recreation, their delegate appointed in writing or other persons appointed by the City of Langford.
• “Contract” means within the Landscape Services Agreement including all schedules and appendices attached to and forming part of the agreement, and as may be amended or extended from time to time.
• “Contractor” means the Party who has executed the Landscape Services Contract.
• “Equipment” means the Contractors’ maintenance equipment described in Schedule B.
• “Fee Schedule” means the schedule of fees for the provision of services attached as Schedule B.
• “Must” “mandatory” means a requirement that must be met in order for a Proposal to receive consideration.
• “Services” means the Services as described generally in Schedule A, including anything and everything required to be done for the fulfillment and completion of the Bear Mountain Boulevard and Park Landscape Maintenance Contract.
• “Work” unless the context otherwise requests, means the whole of the work, tools, materials, labour, equipment, travel, and all other expenditures in connection with the Services to complete the Work as set out in Schedule A Scope of Services.
• “Work site”/ “Work sites” means a City location where the Work is to be performed as identified in Schedule B.
• “Working Day” means any day Monday to Friday inclusive.

2.0 Conduct of the Agreement

2.1 City’s Contract Manager

For the purpose of this Agreement, the City designates as its Contract Manager:

Cory Manton
City of Langford, Manager Parks and Recreation Department
Langford City Hall
877 Goldstream Ave, Langford, BC
Telephone: 250-391-3162
Fax: 250-391-3439
Email: cmanton@cityoflangford.ca

2.2 Contractor Contract Manager

For the purposes of this Agreement, the Contractor designates as its Contract Manager:

Ryan Mogensen

Ecoasis Resort and Golf LLP
2050 Country Club Way
Victoria, BC V9B 6R3
Telephone: 250-216-9564
Email: rmogensen@ecoasis.com

2.3

The Contract Manager will be the primary point of contact for each party in the administration of this Agreement.

2.4

Either party may change its Contract Manager by written notice to the other party.

3.0 Term of Contract

3.1

The Contract Price for will be paid by the City of Langford to the Contractor by way of one twelfth of the following payments of the Contract Price each months for those months of the Term, (and a proportioned amount of the monthly rate for part months) upon delivery of a statement of account. The payments in Years 2 - 5 will be adjusted by the previous year’s Cost of Living Factor:
The Contract Price for each twelve-month period is as follows:
Year 1 = $384,380.31

Year 2 – Year 1 plus (Year 1 multiplied by the 2021 Cost of Living Factor)
Year 3 – Year 2 plus (Year 2 multiplied by the 2022 Cost of Living Factor)
Year 4 – Year 3 plus (Year 3 multiplied by the 2023 Cost of Living Factor)
Year 5 – Year 4 plus (Year 4 multiplied by the 2024 Cost of Living Factor)

3.2

The term of a Contract shall commence on the Agreement Date (the “May 1, 2020”) and expire April 30, 2024 unless terminated, cancelled or extended.

3.3

The term of the Contract may be extended or renewed at the City’s sole discretion for one (1) additional five (5) year term subject to satisfactory performance reviews and price negotiations. The Contractor must submit a request for renewal, in writing, to the City’s Contract Manager as defined in Section 2.0 (2.1) no later than (120) calendar days before the term of Contract expires. The City shall not incur any liability, should it choose not to exercise its exclusive option to renew the Contract.

4.0 Contract Documents

4.1

The terms and conditions of the Contract Documents, whether or not actually attached to this Form of Agreement will govern the terms of this Agreement. The Contract Documents are complementary, and what is called for by any one will be as binding as if called for by all. In the event of any inconsistency or conflict between any of the terms and conditions within these Contract Documents, the provisions of the Contract Documents will take precedence and govern in the following priority:

a. This Form of Agreement;
b. Schedule A: Scope of Services;
c. Schedule B: Pricing;
d. Appendix A: Prime Contractor General Information Form;
e. Appendix B: Prime Contractor Pre-construction Meeting Form;
f. Appendix C: Safety Inspection and Safety Checklist Form;
g. Certificate of Insurance;
h. WorkSafe BC Clearance Letter;
i. Those parts not listed above, but agreed upon by both Parties.

5.0 Services

5.1

The Contractor covenants and agrees with the City to provide the Services in Accordance with this Agreement. The Services provided will meet the specifications and scope set out in Schedule A and at the prices submitted on Schedule B of this Agreement.

5.2

The City reserves the right at its sole discretion to adjust the Scope of Services, level of Services, increase/decrease the number of work site(s) at any time during the Agreement term. There shall be no penalty, or additional cost to the City for any reduction in the amount of Services or work site(s) and the Prices will be increased or decreased by written agreement of the City and the Contractor according to the Prices set out in Schedule B.

5.3

The Contractor will perform the Services with that degree of care, skill and diligence normally provided by a qualified and experienced Contractor performing Services similar to the Services, and on the understanding that the City is relying on the Contractor's experience and expertise. The Contractor represents that it has the expertise, qualifications, resources, and relevant experience to the Services requested.

6.0 Payment and Invoicing

6.1

The City will pay the rates in accordance to the prices submitted on Schedule B to the Contractor in accordance with this Agreement. Payment by the City will be full payment for the Services and the Contractor will not be entitled to receive any additional payment from the City.

6.2

The Contractor will submit a monthly invoice to the City requesting payment of the portion of the Contract Price relating to the Services provided in the previous month.

6.3 Invoices must include:

• the Contractor's name, address and telephone number;
• the City's purchase order number;
• the Contractor's invoice number;
• description of the Services and work site location for Services performed under contract during the previous month;
• description of all additional work, if requested by the City (to include number of hours, hourly rate, description of services, approved disbursements);
• GST/PST are shown as a separate line items.

6.4

If the City reasonably determines that any portion of an invoice is not payable, then the City will so advise the Contractor in writing.

6.5

Unless otherwise provided, all dollar amounts referred to in this Agreement are in lawful money of Canada.

6.6

The City’s standard payment term is NET (30) days.

7.0 Personnel and Sub-Contractors

7.1

The Contractor will provide only personnel who have the qualifications, experience and capabilities to perform the Services.

7.2

The Contractor will perform the Services using the personnel and sub-contractors as may be listed in the Proposal and the Contractor will not remove any such listed personnel or sub-contractors from the Services without the prior written approval of the City.

7.3

If the City reasonably objects to the performance, qualifications, experience or suitability of any of the Contractor's personnel or sub-contractors then the Contractor will, on written request from the City, replace such personnel or sub-contractors.

7.4

The Contractor will preserve and protect the rights of the City with respect to any Goods and Services performed under sub-contract and incorporate the Terms and Conditions of this Agreement into all sub-contracts as necessary to preserve the rights of the City under this Agreement. The Contractor will be as fully responsible to the City for acts and omissions of sub-contractors and of persons directly or indirectly employed by them as for acts and omissions of persons directly employed by the Contractor.

7.5

The Contractor shall not assign or sub-contract its obligations under this Contract, in whole or in part, without prior written approval of the City’s Contract Manager in consultation with the Purchasing Agent.

8.0 Independent Contractor

8.1

The Contractor is an independent Contractor. This Agreement does not create the relationship of employer and employee, a partnership, or a joint venture. The City will not control or direct the details, means or process by which the Contractor performs the Services. The Contractor will determine the number of days and hours of work required to properly and completely perform the Services. The Contractor is primarily responsible for performance of the Services and may not delegate or assign any Services to any other person except as provided for in the Proposal submission. The Contractor will be solely liable for the wages, fringe benefits, work schedules and work conditions of any partners, employees or sub-contractors.

9.0 Prime Contractor

9.1

The Contractor to this Contract is designated and assumes the responsibility as the Prime Contractor per WorkSafe BC OH&S Regulations Section 20.2 Notice of Project and 20.3 Coordination of Multiple Employer Workplaces and Workers’ Compensation Act, Section 118 Coordination of Multiple-Employer Workplaces subsections (1) and (2). The Contractor should also understand the general duties of the Owner as defined in the Workers’ Compensation Act, Section 119 General Duties of Owner. The Contractor should have the necessary qualification and be willing to accept the responsibilities as Prime Contractor for this Contract.

10.0 Indemnification

10.1

The Contractor agrees to indemnify, defend and save harmless the City of L a n g f o r d, including without limitation, its Council Members, agents, servants and employees from and against all suits, claims, demands, losses, damages, expenses and costs made against or incurred, suffered or sustained by the City at any time or times (either before or after the expiration or sooner termination of this Contract) where the same or any of them are based upon or arise out of or from anything done or omitted to be done by the Contractor or by any servant, employee, officers, director or sub-contractor the Contractor pursuant to the Contract excepting always liability out of the independent acts of the City.

11.0 Insurance Requirements

11.1

The Contractor will, without limiting its obligations or liabilities and at its own expense, provide and maintain throughout this Agreement the following insurances in forms and amounts acceptable to the City from insurers licensed in the Province of British Columbia and in forms and amounts acceptable to the City.

a. Commercial General Liability insurance on an occurrence basis, in an amount not less than five million ($5,000,000) dollars inclusive per occurrence against death, bodily injury and property damage arising directly or indirectly out of the work or operations of the Contractor, its employees and agents. The insurance will include cross liability and severability of interests such that the coverage shall apply in the same manner and to the same extent as though a separate policy had been issued to each insured. The insurance will include, but not be limited to: premises and operators liability, broad form products and completed operations, owners and contractors protective liability, blanket contractual, employees as additional insured, broad form property damage, non-owned automobile, contingent employers liability, broad form loss of use, personal injury, and incidental medical malpractice;
b. Automobile Liability Insurance on all vehicles owned, operated or licensed in the name of the Contractor in an amount not less than five million ($5,000,000) dollars per occurrence for bodily injury, death and damage to property; and
c. Contractor’s Equipment Insurance in an all risks form covering construction machinery and equipment used for the performance of the Services.

11.2

All insurance must be primary; and not require the sharing of any loss by an insurer of the City.

11.3

If the insurance policy(ies) expire before the end of the term of this Contract, the Contractor must provide within ten (10) working days of expiration, evidence of new or renewal policy(ies) of all expired insurance in a form acceptable to the City.

11.4

The Contractor shall provide, maintain, and pay for, any additional insurance which it is required by law to carry, or which it considers necessary to cover risks not otherwise covered by insurance specified in this section in its sole discretion.

11.5

Copies of all insurance renewals shall be provided to the City on an annual basis as requested, for the duration of the Contract.

11.6

The Contractor shall place and maintain, or cause any of its sub-contractors to place and maintain, such other insurance or amendments to the foregoing policies as the City may reasonably direct.

11.7

The Contractor hereby waives all rights of recourse against the City for loss or damage to the Contractor's property.

11.8

The insurance certificate shall name the City of Langford as an additional insured and shall be in a format acceptable to the City.

12.0 WorkSafe BC

12.1

The Contractor and any approved sub-contractors must be registered in good standing with WorkSafe BC, in which case WorkSafe BC coverage must be maintained for the duration of the Contract. The Contractor agrees and shall:
a. Provide at its own expense the necessary WorkSafe BC compensation coverage for all it employees and partners employed or engaged in the execution of the Service;
b. Remain current with all assessment reporting and payments due there under and shall comply in every respect with the requirements of the Workers’ Compensation Act and Regulations; and
c. Be solely responsible for to ensure that all sub-contractors have proper Work Safe BC coverage.

12.2

The Contractor will ensure compliance with and conform to all health and safety laws, by-laws or regulations of the Province of British Columbia, including without limitation the Workers Compensation Act and Regulations pursuant thereto.

12.3

The Contractor understands and undertakes to comply with all the Workers' Compensation Board Occupational Health and Safety Regulations for hazardous materials and substances, and in particular with the "Workplace Hazardous Materials Information System (WHMIS)" Regulations. All "Material Safety Data Sheets (MSDS)" will be shipped along with the Goods and any future MSDS updates will be forwarded.

13.0 Deficiencies

13.1

The City shall have a reasonable time to inspect and to accept the Services. The City may reject any Services not in accordance with this Agreement, whether due to damage resulting from improper packing, loading, unloading or otherwise. The City shall notify the Contractor of rejection of the Services whereupon the Services will be held subject to the disposition by the Contractor. Any costs or expenses incurred by the City as a result of the rejection of the Services are, immediately upon written demand by the City, payable by the Contractor, and may be set off against any payments owing by the City to the Contractor.

14.0 Termination

14.1

The City reserves the right, at its sole discretion, to terminate the Agreement immediately, in whole or in part, for any of the following reasons:

• Default or arrears standing at WorkSafe BC; or
• Expired insurance (CGL or Auto)

14.2

The city reserves the right, at its sole discretion, to terminate the Agreement immediately, in whole or in part if the contractor receives three (3) written letters during the Contract Term for any one or more of the following reasons:

• Failure to deliver the promised Services at the required time and location; or
• Failure to provide personnel that is satisfactory to the City; or
• Failure to notify the City of changes in qualified personnel or sub-contractors; or
• Failure to respond to phone calls o r e m a i l s from the City within a timely manner, as solely determined by the City; or
• Failure to provide the require reports as identified in Schedule A; or
• Fails to meet the City’s standard of expected and agreed level of Service and performance; or
• Unsafe acts while on City property that could pose a threat to the safety of the City Staff or Public:
  • Safety infractions; or
  • Expired Business License; or any other reason considered appropriate, at the sole discretion of the City.

14.3

Upon termination of the Agreement, the City will be under no further obligation to the Contractor, except to pay to the Contractor, such amount as the Contractor may be entitled to receive up to the date of termination. Such termination will not result in any penalty to the City, unless otherwise agreed to and as specified in this Contract.

14.4 Cancellation of Agreement

The Agreement may be cancelled by either Party for any reason without cause or penalty upon sixty (60) calendar day’s written notice.

15.0 Curing Defaults

15.1

If the Contractor is in default of any of its obligations under this Agreement, including one (1) letter default and demand to cure as set out in Section 14.2, then the City may without terminating this Agreement, upon five (5) days written notice to the Contractor, remedy the default and set-off all costs and expenses of such remedy against any amounts owing to the Contractor. Nothing in this Agreement will be interpreted or construed to mean that the City has any duty or obligation to remedy any default of the Contractor.

16.0 Business License

16.1

The Contractor will obtain and maintain throughout the term of this Agreement a valid City of Langford business license.

17.0 Applicable Law

17.1

This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia. The City and the Contractor accept the jurisdiction of the courts of British Columbia and agree that any action under this Agreement shall be brought in such courts.

17.2

The Contractor will, as a qualified and experienced Contractor, interpret applicable codes, laws and regulations applicable to the performance of the Services. If an authority having jurisdiction imposes an interpretation which the Contractor could not reasonably have verified or foreseen prior to entering into this Agreement, then the City will pay the additional costs, if any, of making alterations so as to conform to the required interpretation.

18.0 Notices

18.1 Addresses for Notice

Any notice required or permitted to be given by one party to another pursuant to this Agreement must be in writing and will be validly given if delivered, electronically transmitted by email or mailed by pre-paid registered post to the parties as follows:

TO THE CITY OF LANGFORD:

Parks and Recreation Department
2nd Floor, 877 Goldstream Ave
Attention: Cory Manton
cmanton@langford.ca

AND

TO THE CONTRACTOR:

Ecoasis Resort and Golf LLP
2050 Country Club Way
Victoria, BC V9B 6R3
Attention: Ryan Mogensen
rmogensen@ecoasis.com

Any notice given in accordance with this or any other provision of this Agreement is deemed to be received; (a) if delivered by mail, by mailing to that party at their mailing address for notices and such delivery shall be effective when actually delivered or three (3) days following mailing, whichever is the earlier. (b) If delivered by electronic mail, by electronic transmission to that party’s email address for notices (if any) and such delivery shall be effective on the first business day following receipt of the electronic transmission. In the case of electronic mail transmission of notices, the party sending the notice shall be solely responsible for ensuring the notice is properly received by the recipient.

19.0 Dispute Resolution

19.1

The parties will make reasonable efforts to resolve any dispute, claim, or controversy arising out of this Contract or related to this Contract (“Dispute”) using the dispute resolution procedures set out in this section.

a. Negotiation: The parties will make reasonable efforts to resolve any Disputes by amicable negotiations and will provide frank, candid and timely disclosure of all relevant facts, information and documents to facilitate negotiations.
b. Mediation: If all or any portion of a Dispute cannot be resolved by good faith negotiations within thirty (30) days, either party may, by notice to the other party, refer the matter to mediation. Within seven (7) days of delivery of the notice, the parties will mutually appoint a mediator. If the parties fail to agree on the appointment of the mediator, then either party may apply to the British Columbia International Commercial Arbitration Centre for appointment of a mediator. The parties will continue to negotiate in good faith to resolve the Dispute with the assistance of the mediator. The place of mediation will be Langford, British Columbia. Each party will equally bear the costs of the mediator and other out-of-pocket costs, and each party will bear its own costs of participating in the mediation.
c. Litigation: If within ninety (90) days of the request for mediation, the Dispute is not settled, or if the Mediator advises that there is no reasonable possibility of the parties reaching a negotiated resolution, then either party may without further notice commence litigation.

20.0 Time of the Essence

20.1

Time will be of the essence of this Agreement

21.0 Enurement

22.1

This Agreement shall enure to the benefit of and be binding upon the respective successors and permitted assigns of the City and the Contractor.

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This Agreement is executed by the Contractor this day of , 2020.

CONTRACTOR
I/We have the authority to bind the Contractor.

Ecoasis Resort and Golf LLP

(Signature of Authorized Signatory)

(Print Name and Position of Authorized Signatory)

This Agreement is executed by the City of Langford this day of , 2020.

CITY OF LANGFORD

(Signature of Authorized Signatory)

(Mayor)

(Signature of Authorized Signatory)

(Chief Administrative Officer)