HomeMy WebLinkAbout11 - On -Call Agreements for Building Maintenance and Repair ServicesTO:
FROM
CITY OF
NEWPORT BEACH
City Council Staff Report
May 9, 2017
Agenda Item No. 11
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Dan Matusiewicz, Finance Director - 949-644-3123,
dmatusiewicz@newportbeachca.gov
PREPARED BY: Anthony Nguyen, Purchasing Agent
anguyen(@.newportbeachca.gov
PHONE: 949-644-3080
TITLE: On -Call Agreements for Building Maintenance and Repair Services
ABSTRACT:
Following a competitive Request for Proposal (RFP) procurement process, staff seeks
City Council approval for three (3) on-call contracts for building maintenance and repair
services.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because this action will not result in a physical change to the environment, directly or
indirectly; and
b) Authorize the Mayor and City Clerk to approve and execute on-call building
maintenance and repair services contracts with: Ray Carmody, a sole proprietor
doing business as (DBA) Carmody Construction Company; Anthony Graves, a sole
proprietor doing business as (DBA) Graves Construction; and John M. Rabun, sole
proprietor. Each on-call agreement is for a three-year term and carries a not to
exceed expenditure amount of $350,000 for each contract's entire three-year term.
FUNDING REQUIREMENTS:
The adopted budget each fiscal year includes sufficient funding for these building
maintenance needs. These projects will be expensed to the Building Maintenance and
Repair account (851016) in the following departments:
• Community Development Department
• Fire Department
• Library Services Department
• Municipal Operations Department
On -Call Agreements for Building Maintenance and Repair Services
May 9, 2017
Page 2
• Police Department
• Public Works Department
• Recreation & Senior Services Department
DISCUSSION:
The City currently retains contractors to provide assorted building maintenance and
repair services, supplementing work performed by City employees. Recent examples of
these projects include window repairs, general carpentry, minor plumbing repairs,
flooring repairs, equipment replacement, drywall work, and assembly of manufactured
items.
Due to the pending expiration of the current contracts, the City issued an RFP for on-
call building maintenance and repair services, and received four (4) submittals in
response. City staff from the Municipal Operations, Community Development,
Recreation & Senior Services and Fire Departments evaluated the proposals based on
the following criteria: relevant qualifications (20%); experience providing the requested
services (30%); ability and resources to perform the services according to the City's
specifications (20%); and cost considerations (30%). The following table shows the
results of the evaluation panel's review:
PROPOSER
REVIEW SCORE (OUT OF 100)
RANK
Graves Construction
79.37
1
John M. Rabun
77.38
2
Carmody Construction
72.47
3
Metro Builders & Engineers
69.39
4
After conferring with City departments to gauge current and future service needs, it was
determined that it would best fit the City's needs to have three (3) companies retained
under on-call contracts. Referring to the evaluation panel's scoring, the proposers with
the top three scores are recommended for contract award. All three contractors are
experienced in providing building maintenance and repair services; qualified to perform
the wide array of services required by the City; and are properly licensed and insured to
perform work for the City. The pool of references provided by all three contractors
included some local government agencies that provided positive feedback when
contacted regarding their experience with the contractors. Additionally, the
recommended contractors have all previously performed work for the City with positive
project history attested to by the coordinating departments.
Each of the on-call contracts carries a not -to -exceed expenditure amount of $350,000
over the three-year term of the contracts, an average of approximately $116,000 per
year that can be spent on each contract. This amount was determined by taking into
consideration departments' expenditure history in contracting out building repair and
maintenance services, as well as projected future usage across a three-year term. In
the event any of the contracts exceed their maximum expenditure amounts, staff will
present to the Council a request for amendment, in accordance with the City's
contracting policies and procedures.
11-2
On -Call Agreements for Building Maintenance and Repair Services
May 9, 2017
Page 3
Contract usage will be allocated among the City departments according to the following
distribution:
City Department
Anticipated Service Areas
Contract
Potential
Share
Annual
Spend*
Community Development
Income rental properties
10%
$35,000
Department
Finance Department
Allocation for unforeseen
10%
$35,000
service needs
Fire Department
Fire Stations and Lifeguard
15%
$52,500
Headquarters
Library Services
Library branches
7%
$24,500
Department
Municipal Operations
City facilities and infrastructure
30%
$105,000
Department
Police Department
Police Department
10%
$35,000
Headquarters
Public Works Department
Ancillary services to support
10%
$35,000
Capital Improvement Projects
Recreation & Senior
Recreation facilities
8%
$28,000
Services Department
Total:
100%
$350,000
*Departments will still bid each individual building repair or maintenance project among the pool
of on-call contracts
Even though the Finance Department does not engage in contracting these types of
services, the department is acting as the financial administrator of these contracts. The
department is setting aside 10% of each contract to distribute to departments that may
encounter unforeseen building maintenance and repair issues in any given contract
year.
The on-call contracts do not guarantee any specific volume of business for any of the
three companies. Rather, when a building maintenance or repair service need arises,
departments are required to solicit pricing from among the pool of on-call contractors to
find the most competitive contractor for a specific project. The contractors will then
provide pricing based on the rates and resources associated with their respective
contracts.
If the City Council approves and awards these contracts, the Finance Department will
take the lead in entering the contract information in the City's Enterprise Resource
Management (ERP) financial reporting system. This action will properly allocate
maximum expenditure amounts for each department relative to each contract and
ensures that each department has access to their share of the on-call contracts. The
system will also allow Finance Department staff to easily monitor contract expenditures
and audit contract compliance.
11-3
On -Call Agreements for Building Maintenance and Repair Services
May 9, 2017
Page 4
These are the first series of contracts recommended for award as the result of the City's
Contracts Working Group (CWG) collaborative efforts. The CWG consists of staff from
each City department responsible for administering and monitoring contracts. Through
regular meetings and dedicated communication channels, the CWG enables staff and
departments to collaborate on RFPs and contracts in order to eliminate duplication of
efforts. Once a department identifies a service need, all department representatives in
the CWG are surveyed to determine need. Interested departments work together
through the entire contracting process, including refining specifications, providing the
Purchasing Office with anticipated usage amounts and evaluating proposals. The
collaborative scope of these projects enables the Purchasing Office to approach the
bidder community and utilize a larger economy of scale to obtain more competitive
pricing. The CWG also promotes transparency of contract expenditures by quantifying
the usage of multiple departments for the same service types.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
L, rel drig lki,rcil
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — On -Call Building Maintenance and Repair Services Contract with Ray
Carmody, sole proprietor doing business as (DBA) Carmody
Construction Company
Attachment B— On -Call Building Maintenance and Repair Services Contract with
Anthony Graves, sole proprietor doing business as (DBA) Graves
Construction
Attachment C — On -Call Building Maintenance and Repair Services Contract with John
M. Rabun, sole proprietor
11-4
ATTACHMENT A
ON-CALL MAINTENANCEIREPAIR SERVICES AGREEMENT
WITH RAY CARMODY FOR
ON-CALL BUILDING MAINTENANCE AND REPAIR SERVICES
THIS ON-CALL MAINTENANCE/REPAIR SERVICES AGREEMENT
("Agreement") is made and entered into as of this 9th day of May, 2017 ("Effective date"),
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City'), and Ray Carmody, a sole proprietor doing business as ("DBA")
Carmody Construction Company (-Contractor''), whose address is 1210 Birch Tree Court,
La Habra, California 90631, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the Laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to perform on-call maintenance and/or repair
services for City ("Project").
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the maintenance and/or repair services described in this
Agreement.
D. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications set forth by City for the Project, is familiar with all
conditions relevant to the performance of services. and has committed to perform
all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on April 30, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Contractor shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
11-5
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
and
2.1 .3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposat. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
ether party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3.4 For all time periods not specifically set forth herein, Contractor shall respond
in the most expedient and appropriate manner under the circumstances, by fax, hand -
delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Except as otherwise provided herein, no rate changes shall be made during
the term of this Agreement without the prior written approval of City. Contractor's
compensation for all Services performed in accordance with this Agreement, including all
reimbursable items, shall not exceed Three Hundred Fifty Thousand Dollars and
001100 ($350,000.00), without prior written amendment to the Agreement.
Ray Carmody ----- — y— – ---- - - Page 2
11-6
4.2 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall
be adjusted in proportion to changes in the Consumer Price index, subject to the
maximum adjustment set forth 'below. Such adjustment shat! be made by multiplying the
Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the
Consumer Price Index for the calendar month three (3) months preceding the calendar
month for which such adjustment is to be made, and the denominator of which is the value
of the Consumer Price Index for the same calendar month immediately prior to Effective
Date. The Consumer Price Index to be used in such calculation is the "Consumer Price
Index, All Items, 1982-84=144 for All Urban Consumers (CPI -U)", for the Los Angeles -
Riverside -Orange County Metropolitan Area, published by the United dates Department
of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial
indices are published, the official index shall be used. If said Consumer Price Index is no
longer published at the adjustment date, it shall be constructed by conversion tables
included in such new index. In no event, however, shall the amount payable under this
Agreement be reduced below the Billing Rates in effect immediately preceding such
adjustment. The maximum adjustment increase to the Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed the Consumer Price
Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment,
whichever is less.
4.3 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it relates, the date
the Services were performed, the number of hours spent on all Work billed on an hourly
basis, and a description of any reimbursable expenditures. City shall pay Contractor no
later than thirty (34) calendar days after approval of the monthly invoice by City staff.
4.4 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved
in writing in advance by City.
4.5 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Wort{ that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B
and the Letter Proposal.
5. PROJECT MANAGER
5.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Ray Carmody to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
Ray Carmody - - - Page 3
11-7
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's
Purchasing Agent or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Contractor's Work schedule.
8. TYPE AND INSTALLATION OF MATERIALSISTANDARD OF CARE
8.1 Contractor shall use only the standard materials described in Exhibit A in
performing Services under this Agreement. Any deviation from the materials described
in Exhibit A shall not be installed or utilized unless approved in advance and in writing by
the Project Administrator.
8.2 All of the Services shall be performed by Contractor or under Contractor's
supervision, Contractor represents that it possesses the personnel required to perform
the Services required by this Agreement, and that it will perform all Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances. All Services shall be performed by qualified and
experienced personnel who are not employed by City. By delivery of completed Work,.
Contractor certifies that the Work conforms to the requirements of this Agreement, all
applicable federal, state and local laws and legally recognized professional standards.
8.3 Contractor represents and warrants to City that it has, shall obtain and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
Ray Carmody _ Page 4
11-8
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
used or employed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or its
subcontractors, or its workers, or anyone employed by either of them.
9.2 Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the Work
of any subcontractor or supplier selected by Contractor.
9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
9.4 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Contractor.
9,5 Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original condition
and former usefulness as soon as possible, and to protect public and private property.
Contractor shall be liable for any private or public; property damaged during the
performance of the Work by Contractor or its agents.
Ray Carmody Page 5
11-9
9,6 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
9.7 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor or an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
status or other right of employment shall accrue to Contractor or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or any of
Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing the Work,
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
11, COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction, or interest in the
Work to be performed. City agrees to cooperate with Contractor on the Project.
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired,
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
Ray Carmody Page 6
11-10
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. BONDING
15.1 For any Letter Proposal accepted by City of over Twenty Five Thousand
Dollars and 001100 ($25,000.00), Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement. (1) a Labor and Materials Payment Bond in
the amount of one hundred percent (100%) of the total amount to be paid Contractor as
set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), and in the form attached hereto as Exhibit D which is
incorporated herein by this reference; and (2) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid Contractor as set forth in
this Agreement in the form attached hereto as Exhibit E which is incorporated herein by
this reference,
15.2 The Labor and Materials Payment Bond and Faithful Performance Bond
shall be issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, (2)
listed as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class
V11 (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -
Casualty.
15.3 Contractor shall deliver, concurrently with City's approval of any Letter
Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000-00), the Labor and
Materials Payment Bond and Faithful Performance Bond, a certified copy of the
"Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner,
which authorizes the Insurer or Surety to transact surety insurance in the State of
California.
16. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per them wages including legal holidays and
overtime Work for each craft or type of workman needed to execute the Work
contemplated under the Agreement shall be paid to all workmen employed on the Work
to be done according to the Agreement by the Contractor and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et seq.), the [Director of
Industrial Relations has ascertained the general prevailing rate of per them wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations, The Contractor is required to obtain the
wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per them wages. It shall be the obligation of the Contractor or any
Ray Carmody Page 7
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or cotenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
18. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work per -formed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City,
19. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive properly of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Contractor or any
other party. Contractor shall, at Contractor's expense, provide such Documents to City
upon prior written request.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
21. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
Ray Carmody Page 8
11-12
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Contractor
under this Agreement. All such records and invoices shall be clearly identifiable.
Contractor shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Contractor shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Contractor
under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of
the dispute with respect to such payments Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Contractor shall indemnify and hold harmless City for any and
all claims for damages resulting from Contractor's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mil, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Ray Carmody Page 9
11-13
Attn: Purchasing Agent
Finance Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
253 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at,
Attn° Ray Carmody
1240 Birch Tree Court
La Habra, CA 90631
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising cut of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Ciaims Act (Government Code
sections 900 of seq.).
27. TERMINATION
27.1 1n the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. Ir the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination, Contractor
shall deliver to City all reports, Documents and other 'information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
Ray Carmody ti Page 10
11-14
28. LABOR
28.1 Contractor shall conform with all applicable previsions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor Standards
Act ("FLSA") (29 USCA § 201, of seq.).
28.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
28.3 Contractor represents that all persons working under this. Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
28.4 To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees from floss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any applicable
federal, state and local labor laws or law, rules, and/or regulations. This obligation shall
survive the expiration and/or termination of the Agreement.
29. STANDARD PROVISIONS
29.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference.
29.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal', whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the (Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any ether term, covenant or condition contained herein, whether of the
same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein_
No verbal agreement or implied covenant shall be held to vary the provisions herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
Ray Carmody Page 11
11-15
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid„
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
29.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Grange, State of California.
29.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall 'be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Ray Carmody-- - — Page 12
11-16
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORINT: CITY OF NEWPORT BEACH,
CITY ATTO N Y'S OFFICE a California municipal corporation
Date: f Date:
By: By:
Aaron C. Harp Kevin Muldoon
City Attorney Mayor
ATTEST: CONTRACTOR: Ray Carmody, a sole
Date: proprietor doing business as ("DBA")
Carmody Construction Company
Date:
By:
Leilani 1. Brown
City Clerk
By:
Ray Carmody
Sole Proprietor
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B -- Schedule of Billing Rates
Exhibit C — Insurance Requirements
Exhibit D — Labor and Materials Payment Bond
Exhibit E — Faithful Performance Bond
Ray Carmody
Page 13
11-17
EXHIBIT A
SCOPE OF SERVICES
Ray Carmody Rage A-1
11-18
EXHIBIT A — SCOPE OF SERVICES
1. DESCRIPTION OF PROJECT
Furnish all labor, equipment, materials, and supervision to perform maintenance as
described herein, in this Exhibit A, including, but not limited to, the following; general
carpentry, painting, minor plumbing and electrical repairs, appliance replacement,
flooring repairs, assembly of manufactured items, miscellaneous repair work, and
liaison with contractors/vendors. In addition,. the Contractor will assist with repairs to the
City's two piers and ten public floats.
2. MAINTENANCE AND TECHNICAL RESPONSIBILITIES
The Contractor will work with the Project Administrator to schedule site meetings and
repair requests. The following is a list of services that may be required to be performed
under this Agreement:
,-, General Carpentry (removal and installation)
,-, Painting
• e.g.- Interior and exterior doors, cabinet work
• e.g.: Interior and exterior
Minor Plumbing Repairs
• e.g.: Water heater replacement, faucets
o Appliance Replacement (removal and installation)
■ e.g.: Dishwasher, refrigerator, icemakers
Minor Electrical Repairs (removal and installation)
• e.g.: Light fixtures, ballasts, etc.
Flooring Repairs (removal and installation)
= e.g.: Tile replacement, floor sealing
c, Assembling of Manufactured Items
Miscellaneous Repair Work not covered by any of the other services listed herein
(removal and installation)
• e.g.; Window coverings, windows and screens, drywall
o Minor Roof Repairs
Responsibilities shali also Include:
o Liaison with Contractors[Vendors
-� Piers and Public floats
• Make necessary repairs and upgrades as requested by City staff.
• In order to ensure quality and long lasting product that will stand up in
the marine environment, treated lumber will be used for the under
11-19
structure and railings, with Trex (composite lumber) being used for the
decking and top handrail.
3. WORKING HOURS
Normal working hours shall be between the hours of 7.00 a.m. and 4:00 p.m., Monday
through Friday.
4. LEVEL OF MAINTENANCE
4.1 If, in the judgment of the City, the level of maintenance is less than that
specified in the Agreement, the City shall, at its option, in addition to or in lieu of other
remedies provided herein, withhold appropriate payment from the Contractor until
services are rendered in accordance with specifications set forth within this Agreement
and providing no other arrangements have been made between the Contractor and the
City. Failure to notify of a change and/or failure to perform an item or work on a
scheduled day may, at the City's sale discretion, result in deduction of payment for that
date, week, or month. Payment will be retained for work not performed until such time
as the work is performed to City standard.
4.2 The Contractor is required to correct deficiencies within the time specified by
the City. If noted deficient work has not been completed, payment for subject deficiency
shall be withheld and shall continue to be withheld until deficiency is corrected, without
right to retroactive payments.
5. SUPERVISION OF CONTRACT
All work shall meet with the approval of the Project Administrator, or designee. Any
specific problem area which does not meet the conditions of the specifications set forth
herein, in this Exhibit A, shall be called to the attention of the Contractor and if not
corrected, payment to the Contractor will not be made until condition is corrected in a
satisfactory manner as set forth in the specifications.
6. PROJECT ADMINISTRATION
Contractor shall perform all Work required to be performed, and shall provide and
furnish all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project.
7. WORKMANSHIP AND SUPERVISION
Contractor shall maintain a State of California Class B -contractor's license at all time for
the duration of the agreement_
8. PERSONNEL AND BACKGROUND CHECK PROVISIONS
For services performed at the City's Police Department Headquarters, located at 870
Santa Barbara Drive, any assigned personnel must have a Department of Justice -
11 -20
certified background check performed and clearance obtained, Proof of background
check compliance must be provided to the Project Manager at the Police Department
prior to commencement of services. This shall be performed at the sole expense of the
Contractor.
9. OTHER CONDITIONS
Contractor agrees and acknowledges that no individual performing Work/Services
pursuant to this Agreement shall: work full-time for more than six (6) months; work
regular part-time service of at least twenty (20) hours per week for one year or longer;
work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS
member -
11 -21
EXHIBIT B
SCHEDULE OF BILLING 'RATES
Ray Carmody
Page B-1
11-22
EXHIBIT B - SCHEDULE OF BILLING RATES
Contractor shall provide on-call building maintenance and repair services as listed in Exhibit A of this
Agreement, in accordance with the following Schedule of Billing Rates. The specific trades that apply
to a project may vary, depending on the scope of each individual project:
Service Type
Laborer
Laborer
Journeyma
Journeyman
Supervisor
Supervisor
(Regular)
After Hoursn
(Regular)
After Hours
(Regular)
After Hours
General
Carpentry
$84.00
$126.00
$84.66
$126.00
$84.60
$126.00
Painting
$78.00
$117.00
$78.00
$117.00
$78.00
$117.00
Plumbing
$84.00
$126.00
$84.00
$126.00
$84.00
$126.00
Appliance
$65.00
$97.5+0
$65.00
$97.60
$65.00
$97.50
Replacement
Electrical
$$4.00
$126.00
$84.00
$126.00
$84.00
$126.00
Repairs
Flooring
$65.00
$97.50
$65.00
$97.50
$65.00
$97.50
Repairs
Assembling of
Manufactured
$65.00
$97.50
$65.00
$97.50
$65.00
$97.50
Items
Window Repair
$78.00
$117.00
$78.00
$117.00
$78.00
$117.00
Drywall Work
$78.00
$117.00
$78.00
$117.00
$78.00
$117.00
Roof Repairs
$84.00
$126.00
$84.00
$126.00
$84.00
$126.00
Building maintenance and repair services not specifically listed in this Exhibit must be provided in
accordance with the Prevailing Wage rates established by the State of California Department of
Industrial Relations in effect at the time the Letter Proposal for a project is provided, and are subject to
approval and acceptance by the City.
Materials Markup
For projects requiring the acquisition of materials, Contractor shall be permitted to bill the City for no
more than 10% over the cost of acquisition paid by the Contractor. All receipts shall be included in
requests for materials reimbursement and submitted to the Project Manager along with the invoice.
11-23
EXHIBIT C
INSURANCE REQUIREMENTS — MAI NTE NANCE/REPAIRIJ AN ITORIAL SERVICES
I Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage,
2, Acceptable Insurers, All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class Vii (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees,
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Ray Carmody Page C-1
11-24
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. !Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following..
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Regulrements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
Ray Carmody Page C-2
11-25
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
203804'13.
Q. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Contractor or any subcontractor tails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sale option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
Ray Carmody Page C-3
11-26
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Ray Carmody --- _ _---_-- — - - ---- Page C-4
11-27
EXHIBIT D
CITY OF NEWPORT BEACH
BUND NO.
LABOR AND MATERIALS PAYMENT BUND
WHEREAS, the City of Newport Beach, State of California, has awarded to Ray
Carmody hereinafter designated as the "Principal," a contract for maintenance and/or
repair services, in the City of Newport Beach, in strict conformity with the Contract on file
with the office of the City Clerk of the City of Newport Beach, which is incorporated herein
by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
NOW, THEREFORE, We the undersigned Principal, and,
duly authorized to transact business under the laws of the State of California, as Surety,
(referred to herein as "Surety") are held and firmly Bound unto the City of Newport Beach,
in the sum of Dollars ( ),
Lawful money of the United States of America, said sum being equal to 100% of the
amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), payable by the City of Newport Beach under the terms of the
Contract; for which payment well and truly to be made, we bind ourselves, our heirs,
executors and administrators, successors, or assigns, jointly and severally, firmly by
these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
Cade of the State of California.
Ray Carmody - -� Page D-1
11-28
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
0
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE
ATTACHED
Ray Carmody Page D-2
11-29
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of I ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the persons) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
(seal)
State of California
County of )SS.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Ray Carmody
(seal)
Page a-3
11-30
EXHIBIT E
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ , being at the
rate of $ thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to Ray
Carmody hereinafter designated as the "Principal," a contract for maintenance and/or
repair services, in the City of Newport Beach, in strict conformity with the Contract on file
with the office of the City Clerk of the City of Newport Beach, which is incorporated herein
by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
, duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of
( ) lawful
money of the United States of America, said sum being equal to 100% of the amount of
any Letter Proposal accepted by City of over Twenty Five Thousand dollars and 00/100
($25,000.00), to be paid to the City of Newport Beach, its successors, and assigns; for
which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Contract Documents and any alteration thereof made as therein
provided on its part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to its true intent and meaning, or fails to indemnify,
defend, and save harmless the City of Newport Beach, its officers, employees and agents,
as therein stipulated, then, Surety will faithfully perform the same, in an amount not
exceeding the sum specified in this Bond; otherwise this obligation shall become null and
void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
Ray Carmody Page E-1
11-31
notice of any such change, extension of time, alterations or additions of the Contract or
to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the - day of 120
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date -
M
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CON TRA C TOR AND SURETY MUST BE ATTACHED
Ray Carmody Page E-2
11-32
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of )SS.
Can 20before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the persons) whose name(s) is/are
subscribed to the within instrument and acknow edged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by hislherltheir signatures(s) on the instrument
the person(s), or the entity upon Behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
(seal)
State of California
County of )SS.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in hislherltheir authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the taws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Ray Carmody -- — - -
(seal)
11-33
ATTACHMENT B
ON-CALL MAINTENANCEIRE PAIR SERVICES AGREEMENT
WITH ANTHONY GRAVES FOR
ON-CALL BUILDING MAINTENANCE AND REPAIR SERVICES
THIS ON-CALL MAINTENANCE/REPAIR SERVICES AGREEMENT
("Agreement") is made and entered into as of this 9th day of May, 2017 ("Effective Date"),
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and Anthony Graves, a sole proprietor doing business as ("DBA")
Graves Construction ("Contra,ctor"), whose address is 3629 West MacArthur Blvd., Suite
202, Santa Ana, California 92744, and is made with reference to the following:
RECITALS
A, City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City..
6 City desires to engage Contractor to perform on-call maintenance and/or repair
services for City {"Project`).
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the maintenance and/or repair services described in this
Agreement.
D. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications set forth by City for the Project, is familiar with all
conditions relevant to the performance of services, and has committed to perform
all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on April 30, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Contractor shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
11-34
and
2.1.3 The estimated number of hours and cost to complete the Services:
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Contractor to strictly adhere to the schedule set forth in Exhibit. A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3A For alt time periods not specifically set forth herein, Contractor shall respond
in the most expedient and appropriate manner under the circumstances, by fax, hand -
delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the ,Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Except as otherwise provided herein, no rate changes shall be made during
the term of this Agreement without the prior written approval of City. Contractor's
compensation for all Services performed in accordance with this Agreement, including all
reimbursable items, shall not exceed Three Hundred Fifty Thousand Dollars and
00/100 ($350,000.00), without prior written amendment to the Agreement.
4.2 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall
be adjusted in proportion to changes in the Consumer Price Index, subject to the
maximum adjustment set forth below. Such adjustment shall be made by multiplying the
Anthony Graves - --- — — Page 2
11-35
Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the
Consumer Price Index for the calendar month three (3) months preceding the calendar
month for which such adjustment is to be made, and the denominator of which is the value
of the Consumer Price Index for the same calendar month immediately prior to Effective
Date. The Consumer Price Index to be used in such calculation is the "Consumer Price
Index, All Items, 1082-84100 for All Urban Consumers (CPI -U)" for the Los Angeles -
Riverside -Orange County Metropolitan Area, published by the United States Department
of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial
indices are published, the official index shall be used. If said Consumer Price Index is no
longer published at the adjustment date, it shall be constructed by conversion tables
included in such new index. In no event, however, shall the amount payable under this
Agreement be reduced below the Billing Rates in effect immediately preceding such
adjustment. The maximum adjustment increase to the Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed the Consumer Price
Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment,
whichever is less.
4.3 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it relates, the date
the Services were performed, the number of hours spent an all Work billed on an hourly
basis, and a description of any reimbursable expenditures. City shall pay Contractor no
later than thirty (30) calendar days after approval of the monthly invoice by City staff.
4.4 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved
in writing in advance by City.
4.5 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scrape of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B
and the Letter Proposal.
5. PROJECT MANAGER
5A Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Anthony Graves to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the stale discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Anthony Graves Wage 3
11-36
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's
Purchasing Agent or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Contractor's Work schedule.
8. TYPE AND INSTALLATION OF MATERIALSISTANDARD OF CARE
8.1 Contractor shall use only the standard materials described in Exhibit A in
performing Services under this Agreement. Any deviation from the materials described
in Exhibit A shall not be installed or utilized untess approved in advance and in writing by
the Project Administrator.
8.2 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
the Services required by this Agreement, and that it will perform all Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by ether reasonably competent practitioners of the same
discipline under similar circumstances. All Services shall be performed by qualified and
experienced personnel who are not employed by City. By delivery of completed Work,
Contractor certifies that the Work conforms to the requirements of this Agreement, all
applicable federal, state and local laws and legally recognized professional standards.
8.3 Contractor represents and warrants to City that it has, shall obtain and shall
keep in full farce and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
9, RESPONSIBILITY FOR DAMAGES OR INJURY
9.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
Anthony Graves Page 4
11-37
used or employed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or its
subcontractors, or its workers, or anyone employed by either of them.
9.2 Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the Work
of any subcontractor or supplier selected by Contractor.
9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
9.4 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Contractor_
9.5 Contractor shall perform all 'Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original condition
and former usefulness as soon as passible, and to protect public and private property.
Contractor shall be liable for any private or public property damaged during the
performance of the Work by Contractor or its agents.
9.6 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
9.7 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
Anthony Graves Page 5
11-38
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
status or other right of employment shall accrue to Contractor or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or any of
Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing. the Work,
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with Contractor on the Project.
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or forother periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. BONDING
15.1 For any Letter Proposal accepted by City of over Twenty Five Thousand
Dollars and 001100 ($25,000.00), Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement: (1) a Labor and Materials Payment Bond in
the amount of one hundred percent (100%) of the total amount to be paid Contractor as
set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), and in the form attached hereto as Exhibit D which is
Anthony Craves -- --- - - - -----Page 0
11-39
incorporated herein by this reference; and (2) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid Contractor as set forth in
this Agreement in the form attached hereto as Exhibit E which is incorporated herein by
this reference.
15.2 The Labor and Materials Payment Bond and Faithful Performance Bond
shall be issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, (2)
listed as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders` Rating A (or higher) and Financial Size Category Class
Vli (or larger) in accordance with the latest edition of Best's Key Rating Guide; Property -
Casualty.
15.3 Contractor shall deliver, concurrently with City's approval of any Letter
Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000.00), the Labor and
Materials Payment Band and Faithful Performance Band, a certified copy of the
"Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner,
which authorizes the Insurer or Surety to transact surety insurance in the State of
California.
16. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per diem wages including legal holidays and
overtime Work for each craft or type of workman needed to execute the Work
contemplated under the Agreement shall be paid to all workmen employed on the Work
to be done according to the Agreement by the Contractor and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations. The Contractor is required to obtain the
wage determinations from the Department of dndustrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or cotenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25°/x) or more of the assets of the corporation, partnership or joint -venture.
Anthony Graves _ - Page 7
11-40
18. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of cage between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
19. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this.
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Contractor or any
other party. Contractor shall, at Contractors expense, provide such documents to City
upon prior written request,
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
21. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Contractor
under this Agreement. All such records and invoices shall be clearly identifiable.
Contractor shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Contractor shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Contractor
under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
Anthony Graves --- -- - - - Page 8
11-41
sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Contractor shall indemnify and hold harmless City for any and
all claims for damages resulting from Contractor's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Attn: Purchasing Agent
Finance Department
City of Newport Beach
190 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at-
Attn: Anthony Graves
3629 West MacArthur Blvd., Suite 202
Santa Ana, CA 92704
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in writing,
Anthony Graves Page 9
11-42
all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination, Contractor
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. LABOR
28.1 Contractor shall conform with all applicable provisions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor Standards
Act ("FLSA") (29 USCA § 201, et seq.).
28.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
28.8 Contractor represents that all persons working under this Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
28.4 To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees from loss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any applicable
federal, state and local labor laws or law, rules, and/or regulations. This obligation shall
survive the expiration and/or termination of the Agreement.
Anthony Graves - -- - Page 10
11-43
29. STANDARD PROVISIONS
29.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference.
29.2 Compliance with all Laws. Contractor shall, at its awn cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental,
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
2.9.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
29A Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No vernal agreement or implied covenant shall be held to vary the provisions herein.
29.6 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rude of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to farm by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full farce and effect.
29.3 Controlling and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29,10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
;ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
Anthony Graves Page 11
11-44
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
2.9.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall he deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Anthony Graves - - ------ Page 12
11-45
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below,
APPROVED AS TO FORM:
CITY ATTO NJEY,S O FICE
Date: Lt
By:
Aaron C. Harp py Z Y3
City Attorney
ATTEST:
Date:
By:
Leilani 1. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Kevin Muldoon
Mayor
CONTRACTOR: Anthony Graves, a
sale proprietor doing business as ("DBA")
Graves Construction
Date:
By=
Anthony Graves
Sole Proprietor
[END OF SIGNATURES)
Attachments: Exhibit A
— Scope of Services
Exhibit B
— Schedule of Billing Rates
Exhibit C
— Insurance Requirements
Exhibit D
— Labor and Materials Payment Bond
Exhibit E —
Faithful Performance Bond
Anthony Graves
Page 13
11-46
EXHIBIT A
SCOPE OF SERVICES
Anthony Graves Page A-1
11-47
EXHIBIT A — SCOPE OF SERVICES
1. DESCRIPTION OF PROJECT
Furnish all labor, equipment, materials, and supervision to perform maintenance as
described herein, in this Exhibit A, including, but not limited to, the fallowing: general
carpentry, painting, minor plumbing and electrical repairs, appliance replacement,
flooring repairs, assembly of manufactured items, miscellaneous repair work, and
liaison with contractors/vendors. In addition, the Contractor will assist with repairs to the
City's two piers and ten public floats.
2. MAINTENANCE AND TECHNICAL RESPONSIBILITIES
The Contractor will work with the Project Administrator to schedule site meetings and
repair requests. The following is a list of services that may be required to be performed
under this Agreement:
General Carpentry (removal and installation)
Painting
• e.g.: Interior and exterior doors, cabinet work
■ e.g.: Interior and exterior
Minor Plumbing Repairs
• e.g.: Water heater replacement, faucets
c, Appliance Replacement (removal and installation)
• e.g.: Dishwasher, refrigerator, icemakers
o Minor Electrical Repairs (removal and installation)
s e.g.: Light fixtures, ballasts, etc..
Flooring Repairs (removal and installation)
■ e.g.: Tile replacement, floor sealing
o Assembling of Manufactured Items
Miscellaneous Repair Work not covered by any of the other services listed herein
(removal and installation)
■ e.g.: Window coverings, windows and screens, drywall
v Minor Roof Repairs
Responsibilities shall also include:
Liaison with ContractorsNendors
* Piers and Public floats
■ Make necessary repairs and upgrades as requested by City staff.
• In order to ensure duality and long lasting product that will stand up in
the marine environment, treated lumber will be used for the under
11-48
structure and railings, with Trex (composite lumber) being used for the
decking and top handrail.
3. WORKING HOURS
Normal working hours shall be between the hours of 7:00 a.m. and 4:00 p.m., Monday
through Friday.
4, LEVEL OF MAINTENANCE
4.1 If, in the judgment of the City, the level of maintenance is less than that
specified in the Agreement, the City shall, at its option, in addition to or in lieu of other
remedies provided herein, withhold appropriate payment from the Contractor until
services are rendered in accordance with specifications set forth within this Agreement
and providing no other arrangements have been made between the Contractor and the
City. Failure to notify of a change and/or failure to perform an item or work on a
scheduled day may, at the City's sole discretion, result in deduction of payment for that
date, week, or month. Payment will be retained for work not performed until such time
as the work is performed to City standard.
4.2 The Contractor is required to correct deficiencies within the time specified by
the City. If noted deficient work has not been completed, payment for subject deficiency
shall be withheld and shall continue to be withheld until deficiency is corrected, without
right to retroactive payments.
5. SUPERVISION OF CONTRACT
All work shall meet with the approval of the Project Administrator, or designee. Any
specific problem area which does not meet the conditions of the specifications set forth
herein, in this Exhibit A, shall be called to the attention of the Contractor and if not
corrected, payment to the Contractor will not be made until condition is corrected in a
satisfactory manner as set forth in the specifications.
6. PROJECT ADMINISTRATION
Contractor shall perform all Work required to be performed, and shall provide and
furnish all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project.
7. WORKMANSHIP AND SUPERVISION
Contractor shall maintain a State of California Class B -contractor's license at all time for
the duration of the agreement.
8. PERSONNEL AND BACKGROUND CHECK PROVISIONS
For services performed at the City's Police Department Headquarters, located at 870
Santa Barbara Drive, any assigned personnel must have a Department of Justice -
11 -49
certified background check performed and clearance obtained. Proof of background
check compliance must be provided to the Project Manager at the Police Department
prior to commencement of services. This shall be performed at the sole expense of the
Contractor.
9. OTHER CONDITIONS
Contractor agrees and acknowledges that no individual performing Work/Services
pursuant to this Agreement shall: work full-time for more than six (6) months; work
regular part-time service of at least twenty (20) hours per week for one year or longer;
work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS
member.
11-50
Anthony Graves Page
11-51
EXHIBIT B - SCHEDULE OF BILLING RATES
Contractor shall provide on-call building maintenance and repair services as listed in Exhibit A of this
Agreement, in accordance with the following Schedule of Billing Rates. The specific trades that apply
to a project may vary, depending on the scope of each individual project.-
Service
roject:
Service Type
Laborer
taborer
Journeyma
Journeyman
Supervisor
Supervisor
(Regular)
After Hours
n (Regular)
After Hours
Re ular
After Hours
General
$61.95
$84.21
77.55
97.60
$82.48
$98.46
Carpentry
Painting
$46.70
$63.03
72.15
89.36
$82.48
$98.46
Plumbing
$57.96
$76.40
70.79
56.92
$82.48
$98.46
Appliance
$57.96
$76.40
70.79
86.92
$82.48
$98.46
Replacement
Electrical
$61.30
$86.06
70.17
84.50
$82.48
$98.46
Repairs
Flooring
$61.95
$84.21
77.55
97.60
$82.48
$98.46
Repairs
Assembling of
$61.95
$84.21
77.55
97.60
$82.48
$98.46
Manufactured
Items
Window Repair
$61.95
$84.21
77.55
97.60
$82.48
$98.46
Drywall Work
$58.05
$78.25
74.26
92.85
$82.48
$98.46
Roof Repairs
$53.04
$69.72
70.85
87.91
$82.48
$98.46
Building maintenance and repair services not specifically listed in this Exhibit must be provided in
accordance with the Prevailing Wage rates established by the State of California Department of
Industrial Relations in effect at the time the Letter Proposal for a project is provided„ and are subject to
approval and acceptance by the City.
Materials Markup
For projects requiring the acquisition of materials, Contractor shall be permitted to bill the City for no
more than 10% over the cost of acquisition paid by the Contractor. All receipts shall be included in
requests for materials reimbursement and submitted to the Project Manager along with the invoice.
11-52
EXHIBIT C
INSURANCE REQUIREMENTS — MAINTENANCE/REPAIR/JANITORIAL SERVICES
I Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ('51,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars {52,000,000} general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and' property damage for all activities of Contractor
arising out of or in connection with 'Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Anthony Graves ----- Page C-1
11-53
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. Ail policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at anytime.
B City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. if such change results in substantial
Anthony Graves - - — -- — --Page C-2
11-54
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at feast as broad as CG
20380413.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
K Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
Anthony Graves- – - - - -- — - - -- ----Wage C-3
11-55
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right abut not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Werk..
Anthony Craves
Page C-4
11-56
EXHIBIT D
CITY OF NEWPORT BEACH
BOND NO.
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to
Anthony Craves hereinafter designated as the "Principal," a contract for maintenance
and/or repair services, in the City of Newport Beach, in strict conformity with the Contract
on file with the office of the City Clerk of the City of Newport Beach, which is incorporated
herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this band will pay the same to the
extent hereinafter set forth.
NOW, THEREFORE, We the undersigned Principal, and,
duly authorized to transact business under the laws of the State of California, as Surety,
(referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach,
in the sum of Dollars 4 Y
lawful money of the United States of America, said sum being equal to 109% of the
amount of any setter Proposal accepted by City of over Twenty Five Thousand Dollars
and 001190 ($25,000.00), payable by the City of Newport Beach under the terms of the
Contract; for which payment well and truly to be made, we bind ourselves, our heirs,
executors and administrators, successors, or assigns, jointly and severally, firmly by
these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 9509 et seq. of the Civil
Code of the State of California.
Anthony Graves Page D-1
11-57
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED A5 TO FORM. -
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE
ATTACHED
Anthony Graves
Page D-2
11-58
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknow#edged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies onfy the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of } ss,
On - - 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the persons) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Anthony Graves Page D-3
11-59
EXHIBIT E
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Band is $
rate of $
being at the
thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to
Anthony Graves hereinafter designated as the "Principal," a contract for maintenance
andlor repair services, in the City of Newport Beach, in strict conformity with the Contract
on file with the office of the City Clerk of the City of Newport Beach, which is incorporated
herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
, duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of
{ ) lawful money of
the United States of Arnerica, said sum being equal to 100% of the amount of any Letter
Proposal accepted by City of over Twenty Five Thousand Dollars and 001100
($25,000.00), to be paid to the City of Newport Beach, its successors, and assigns; for
which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Contract Documents and any alteration thereof made as therein
provided on its part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to its true intent and meaning, or fails to indemnify,
defend, and save harmless the City of Newport Beach, its officers, employees and agents,
as therein stipulated, then, Surety will faithfully perform the same, in an amount not
exceeding the sum specii'led in this Bond, otherwise this obligation shall become null and
void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
Anthony Graves Page E-1
11-60
notice of any such change, extension of time, alterations or additions of the Contract or
to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named. on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM.
CITY ATTORNEY'S OFFICE
Date:
By;
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BEA TTA CHER
Anthony Cranes T - - � -- ---------- -- - Page E-2
11-61
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of )SS.
On 20before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the persons), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seat.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument,
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Anthony Graves — - -
11-62
ATTACHMENT C
ON-CALL MAINTENANCE/REPAIR SERViCES AGREEMENT
WITH ,JOHN M. RABUN FOR.
ON-CALL BUILDING MAINTENANCE AND REPAIR SERVICES
THIS ON-CALL MAINTENANCE/REPAIR SERVICES AGREEMENT
("Agreement") is made and entered into as of this 9th day of May, 2017 ("Effective date"),
by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and Jahn M. Rabun, a sole proprietor ("Contractor"), whose address
is 22512 Hummingbird Lane, Lake Forest. California 92630, and is made with reference
to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to perform on-call maintenance and/or repair
services for City ("Project").
C_ Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the maintenance and/or repair services described in this
Agreement.
D. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications set forth by City for the Project, is familiar with all
conditions relevant to the performance of services, and has committed to perform
all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
I. TERM
The term of this Agreement shall commence on the Effective date, and shall
terminate on April 30, 2020, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Contractor shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following
2.1 A A detailed description of the Services to be provided,
2.1..2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
11-63
and
2.1.3 The estimated number of hours and cast to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3.4 For all time periods not specifically set forth herein, Contractor shall respond
in the most expedient and appropriate manner under the circumstances, by fax, hand -
delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the 'Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Except as otherwise provided herein, no rate changes shall be made during
the term of this Agreement without the prior written approval of City. Contractor's
compensation for all Services performed in accordance with this Agreement, including afl
reimbursable items, shall not exceed Three Hundred fifty Thousand Dollars and
0 0/ 10 0 ($350,000.00), without prier written amendment to the Agreement.
4.2 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall
be adjusted in proportion to changes in the Consumer Price Index, subject to the
maximum adjustment set forth below. Such adjustment shall be made by multiplying the
John M. Rabun � -- - - — Page 2
11-64
Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the
Consumer Price Index for the calendar month three (3) months preceding the calendar
month for which such adjustment is to be made, and the denominator of which is the value
of the Consumer Price Index for the same calendar month immediately prior to Effective
Gate. The Consumer Price Index to be used in such calculation is the "Consumer Price
Index, All Items, 1982-84=100 for All Urban Consumers (CPI -U)", for the Los Angeles -
Riverside -Orange County Metropolitan Area, published by the United States Department
of Labor, Bureau of Labor Statistics, If both an official index and one or more unofficial
indices are published, the official index shall be used. If said Consumer Price Index is no
longer published at the adjustment date, it shall be constructed by conversion tables
included in such new index. In no event, however, shall the amount payable under this
Agreement be reduced below the Billing Rates in effect immediately preceding such
adjustment. The maximum adjustment increase to the Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed the Consumer Price
Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment,
whichever is less.
4.3 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it relates, the date
the Services were performed, the number of hours spent on all Work billed on an hourly
basis, and a description of any reimbursable expenditures. City shall pay Contractor no
later than thirty (30) calendar days after approval of the monthly invoice by City staff,
4.4 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved
in writing in advance by City.
4.5 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B
and the Letter Proposal.
5. PROJECT MANAGER
5.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated John M. Rabun to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheid with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City..
John M. Rabun Page 3
11-65
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement
tai. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's
Purchasing Agent or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Contractor's Work schedule.
8. TYPE. AND INSTALLATION OF MATE RIALSISTANDARD OF CARE
8.1 Contractor shall use only the standard materials described in Exhibit A in
performing Services under this Agreement. Any deviation from the materials described
In Exhibit A shall not be installed or utilized unless approved in advance and in writing by
the Project Administrator.
8.2 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
the Services required by this Agreement, and that it will perform all Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances. All Services shall be performed by qualified and
experienced personnel who are not employed by City. By delivery of completed Work,
Contractor certifies that the Work conforms to the requirements of this Agreement, all
applicable federal, state and local laws and legally recognized professional standards.
8.3 Contractor represents and warrants to City that it has, shall obtain and shall
keep in full force and effect during the term hereof, at its sale cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
John M. Rabun ---� --- -- - Page 4
11-66
used or employed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or its
subcontractors, or its workers, or anyone employed by either of them.
9.2 Contractor shall be responsible for any liability imposed by law ana for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the Work
of any subcontractor or supplier selected by Contractor,
9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, Its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily 'injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
9-4 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as 2 limitation upon the amount of indemnification to be provided by Contractor.
9.5 Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original condition
and former usefulness as soon as possible, and to protect public and private property.
Contractor shall be liable for any private or public property damaged during the
performance of the Work by Contractor or its agents.
9.6 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
9.7 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
John M. Rabun Page 5
11-67
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
status or other right of employment shall accrue to Contractor or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or any of
Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing the Work.
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any ether agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with Contractor on the Project.
12. CiTY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. BONDING
15.1 For any Letter Proposal accepted by City of over Twenty Five Thousand
Collars and 001100 ($25,000.00), Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement: (1 ) a Labor and Materials Payment Bond in
the amount of one hundred percent (100%) of the total amount to be paid Contractor as
set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 001100 ($25,000.00), and in the form attached hereto as Exhibit D which is
John M. Rabun Page 6
11-68
incorporated herein by this reference-, and (2) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid Contractor as set forth in
this Agreement in the form attached hereto as Exhibit E which is incorporated herein by
this reference.
15.2 The Labor and Materials Payment Bond and Faithful Performance Bond
shall be issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, (2)
listed as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class
VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -
Casualty.
15.3 Contractor shah deliver, concurrently with City's approval of any Letter
Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000.00), the Labor and
Materials Payment Bond and Faithful Performance Bond, a certified copy of the
"Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner,
which authorizes the Insurer or Surety to transact surety insurance in the State of
California.
16. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per diem wages including legal holidays and
overtime Work for each craft or type of workman needed to execute the Work
contemplated under the Agreement shall be paid to all workmen employed on the Work
to be done according to the Agreement by the Contractor and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et sect.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations. The Contractor is required to obtain the
wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or ether disposition of any
of the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or cotenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
John M. Rabun - -- - Page 7
11-69
18. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
19. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, pian, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Contractor or any
other party. Contractor shall, at Contractor's expense, provide such Documents to City
upon prior written request.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
21. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Contractor
under this Agreement. All such records and invoices shall be clearly identifiable.
Contractor shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Contractor shafl allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Contractor
under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
John M. Rabun �- — Fuge 8
11-70
sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project,
24. CONFLICTS OF INTEREST
24.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Contractor shall indemnify and hold harmless City for any and
all claims for damages resulting from Contractor's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the germs of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Attn: Purchasing Agent
Finance Department
City of Newport Beach
196 Civic Center Drive
PFJ Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: John M. Rabun
22512 Hummingbird Lane
Lake Forest, CA 92630
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in writing,
John M, Rabun - — - - Page 9
11-71
all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination, Contractor
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. LABOR
28.1 Contractor shall conform with all applicable provisions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor Standards
Act ("FLSA") (29 USCA § 201, of seq.),
28.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
28.3 Contractor represents that all persons working under this Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
28.4 To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees from loss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any applicable
federal, state and local labor laws or law, rules, and/or regulations. This obligation shall
survive the expiration and/or termination of the Agreement.
John M. Rabun Page 10
11-72
29. STANDARD PROVISIONS
29.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference.
29.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. fn addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any ether term, covenant or condition contained herein, whether of the
same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.8 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full farce and effect.
29.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and ali matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Grange, State of California,
29.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
John M. Rabun Page 11
11-73
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
John M. Rabun Wage 12
11-74
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATT R Y'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani L Brown
City Clerk.
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Kevin Muldoon
Mayor
CONTRACTOR: John M. Rabun, a sole
proprietor
Date:
By:
John M. Rabun
Sole Proprietor
[END OF SIGNATURES]
Attachments: Exhibit A —
Scope of Services
Exhibit B —
Schedule of Billing Rates
Exhibit C —
Insurance Requirements
Exhibit D —
Labor and Materials Payment Bond
Exhibit E —
Faithful Performance Bond
John M. Rabun Page 13
11-75
John M. Rabun Page A-1
11-76
EXHIBIT A — SCOPE OF SERVICES
1. DESCRIPTION OF PROJECT
Furnish all labor, equipment, materials, and supervision to perform maintenance as
described herein, in this Exhibit A, including, but not limited to, the following: general
carpentry, painting, minor plumbing and electrical repairs, appliance replacement.
flooring repairs, assembly of manufactured items, miscellaneous repair work, and
liaison with contractors/vendors. In addition, the Contractor will assist with repairs to the
City's two piers and ten public floats.
2. MAINTENANCE AND TECHNICAL RESPONSIBILITIES
The Contractor will work with the Project Administrator to schedule site meetings and
repair requests. The following is a list of services that may be required to be performed
under this Agreement:
o General Carpentry (removal and installation)
Painting
■ e.g.: Interior and exterior doors, cabinet work
■ e.g.: Interior and exterior
o Minor Plumbing Repairs
■ e.g.: Water heater replacement, faucets
c Appliance Replacement (removal and installation)
e.g.: Dishwasher, refrigerator, icemakers
_> Minn Electrical Repairs (removal and installation)
i e.g.: Light fixtures, ballasts, etc.
Flooring Repairs (removal and installation)
e.g.: Tile replacement, floor sealing
:_} Assembling of Manufactured Items
,o Miscellaneous Repair Work not covered by any of the other services listed herein
(removal and installation)
■ e.g.- Window coverings, windows and screens, drywall
o Minor Roof Repairs
Responsibilities shall also include:
Liaison with Contractors/Vendors
o Piers and Public floats
■ Make necessary repairs and upgrades as requested by City staff.
• In order to ensure quality and long lasting product that will stand up in
the marine environment, treated lumber will be used for the under
11-77
structure and railings, with Trex (composite lumber) being used for the
decking and top handrail.
3. WORKING HOURS
/Normal working hours shall be between the hours of 7:00 a.m. and 4.00 p.m., Monday
through Friday.
4. LEVEL OF MAINTENANCE
4.1 If, in the judgment of the City, the level of maintenance is less than that
specified in the Agreement, the City shall, at its option, in addition to or in lieu of other
remedies provided herein, withhold appropriate payment from the Contractor until
services are rendered in accordance with specifications set forth within this Agreement
and providing no other arrangements have been made between the Contractor and the
City. Failure to notify of a change and/or failure to perform an item or work on a
scheduled day may, at the City's sole discretion, result in deduction of payment for that
date, week, or month. Payment will be retained for work not performed until such time
as the work is performed to City standard.
4.2 The Contractor is required to correct deficiencies within the time specified by
the City. If noted deficient work has not been completed, payment for subject deficiency
shall be withheld and shale continue to be withheld until deficiency is corrected, without
right to retroactive payments.
5. SUPERVISION OF CONTRACT
All work shall meet with the approval of the Project Administrator, or designee. Any
specific problem area which does not meet the conditions of the specifications set forth
herein, in this Exhibit A, shall be called to the attention of the Contractor and if not
corrected, payment to the Contractor will not be made until condition is corrected in a
satisfactory manner as set forth in the specifications.
6. PROJECT ADMINISTRATION
Contractor shall perform all Work required to be performed, and shall provide and
furnish all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project.
7. WORKMANSHIP AND SUPERVISION
Contractor shall maintain a State of California Class B -contractor's license at all time for
the duration of the agreement.
8. PERSONNEL AND BACKGROUND CHECK PROVISIONS
For services performed at the City's Police Department Headquarters, located at 870
Santa Barbara Drive, any assigned personnel must have a Department of Justice -
11 -78
certified 'background check performed and clearance obtained. Proof of background
check compliance must be provided to the Project Manager at the Police Department
prior to commencement of services. This shall be performed at the sole expense of the
Contractor.
9. OTHER CONDITIONS
Contractor agrees and acknowledges that no individual performing Work/Services
pursuant to this Agreement shall: work full-time for more than six (6) months; work
regular part-time service of at least twenty (20) fours per week for one year or longer;
work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS
member.
11-79
EXHIBIT B
SCHEDULE OF BILLING RATES
John M. Rabun
Page B-9
11-80
EXHIBIT B - SCHEDULE OF BILLING RATES
Contractor shall provide on-call building maintenance and repair services as listed in Exhibit A of this
Agreement, in accordance with the following Schedule of Billing Rates. The specific trades that apply
to a project may vary, depending on the scope of each individual project..
Service Type
Laborer
Laborer
Journeyma
Journeyman
Supervisor
Supervisor
Re alar
After Hours
n Re ular
After Hours
(Regular)
After Hours)
General
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Carpentry
Painting
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Plumbing
$57.070
$87.00
$57.00
$87.00
$57.00
$87.00
Appliance
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Replacement
Electrical
$57.00
$87,40
$57.00
$87.00
$57.00
$87.00
Repairs
Flooring
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Repairs
Assembling of
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Manufactured
Items
Window Repair
$57.00
$87.00
$57.00
$87.00
$57.00
$87,00
Drywall Work
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Roof Repairs
$57.00
$87.00
$57.00
$87.00
$57.00
$87.00
Building maintenance and repair services not specifically listed in this Exhibit must be ,provided in
accordance with the Prevailing Wage rates established by the State of California Department of
Industrial Relations in effect at the time the Letter Proposal for a project is provided, and are subject to
approval and acceptance by the City.
Materials Markup
For projects requiring the acquisition of materials, Contractor shall be permitted to bill the City for no
more than 10% over the cost of acquisition paid by the Contractor. All receipts shall be included in
requests for materials reimbursement and submitted to the Project Manager along with the invoice.
11-81
EXHIBIT C
INSURANCE REQUIREMENTS — MAI NTENANCEIREPAIRIJANITOR IAL SERVICES
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage,
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager,
3. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers"
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumedunder an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
Insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any awned, hired. non -owned or rented
John M. Rabun Page C-1
11-82
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. _Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A_ Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies,
C. Primary and Nan Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D, Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
6. Additional Agreements_ Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and ether
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
John M. Rabun - Page C-2
11-83
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors, For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20380413.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or ether requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type, If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein. then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
John M. Rabun - - Page C-3
11-84
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Contractor's Insurance. Contractor shall also procure and maintain, ,at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
John M. Rabun - Page C-4
11-85
EXHIBIT D
CITY OF NEWPORT BEACH
BUND NO.
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to John
M. Rabun hereinafter designated as the "Principal," a contract for maintenance and/or
repair services, in the City of Newport Beach, in strict conformity with the Contract on file
with the office of the City Clerk of the City of Newport Beach, which is incorporated herein
by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
NOW, THEREFORE., We the undersigned Principal, and,
duly authorized to transact business under the laws of the State of California, as Surety,
(referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach,
in the sum of Dollars ( )
lawful money of the United States of America, said sum being equal to 100% of the
amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 001100 ($25,000.00), payable by the City of Newport Beach under the terms of the
Contract, for which payment well and truly to be made, we bind ourselves, our heirs,
executors and administrators„ successors, or assigns, jointly and severally, firmly by
these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be dome, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
Code of the State of California.
John M. Rabun � Page D-1
11-86
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNCUWLEDOMENTS OF CONTRACTOR AND SURETY MAST BE
ATTACHED
John M. Rabun
Page D-2
11-87
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }s$.
On 20before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that helshelthey executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of -- )ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in hislherltheir authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
John M. Rabun
(seal)
Page D-3
11-88
EXHIBIT E
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ , being at the
rate of $ thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to John
M. Rabun hereinafter designated as the "Principal," a contract for maintenance and/or
repair services, in the City of Newport Beach, in strict conformity with the Contract on file
with the office of the City Clerk of the City of Newport Beach, which is incorporated herein
by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety") are held and firmly bound unto the City of Newport Beach, in the sum of
(_ } lawful
money of the United 'States of America, said sum being equal to 100% of the amount of
any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100
($25,000.00), to be paid to the City of Newport Beach, its successors, and assigns; for
which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Contract Documents and any alteration thereof made as therein
provided on its part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to its true intent and meaning, or fails to indemnify,
defend, and save harmless the City of Newport Beach, its officers, employees and agents,
as therein stipulated, then, Surety will faithfully perform the same, in an amount not
exceeding the sum specified in this Bond; otherwise this obligation shall become null and
void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
John M. Rabun Page E-1
11-89
notice of any such change, extension of time, alterations or additions of the Contract or
to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the _ day of
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
Date:
M
Aaron C. Harp
City Attorney
20
Authorized Sigrature[Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND ,SURETY MUST BE ATTACHED
John M. Rabun Page E-2
11-90
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that helshe/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared ,
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
John M. Rabun
(seal)
11-91