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HomeMy WebLinkAbout12 - On-Call Maintenance & Repair ServicesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 12 October 12, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Fire Department Steve Parker, Fire Chief, (949) 644 -3101 sparker(ainbfd.net General Services Department Mark Harmon, Director, (949) 644 -3055 mharmon(a)newportbeachca.gov SUBJECT: On -Call Maintenance and Repair Services Agreement with John M. Rabun, DBA J.M. Rabun Company ISSUE: City staff has identified the need for on -call light maintenance ( "handyman ") services for all City facilities to supplement the work currently being performed by City employees. RECOMMENDATION: Approve a three -year contract with John M. Rabun, DBA J.M. Rabun Company, for on -call light maintenance and repair services for City facilities at a cost not to exceed $100,000.00 per year. DISCUSSION: Facilities Maintenance Program For the past several years, various departments within the City have been responsible for the maintenance and repairs of their respective facilities. For example, Fire Department personnel contracted for maintenance of fire stations and lifeguard headquarters, Recreation staff was responsible for maintenance and janitorial work at recreation centers and park facilities, and Library staff had full responsibility for maintenance and repairs of their respective facilities. At the City Manager's direction to look at more cost effective and efficient ways to provide services, a committee was formed to evaluate the benefits of moving from a decentralized facility maintenance program, to a centralized program managed by the General Services Department (GSD). The City is now transitioning to a centralized facility maintenance program with oversight and contract management from GSD. Cost savings include light maintenance work being performed by existing City staff and, thereby, reducing outside contract costs. During this transition period, the Administrative Services Department issued a Request for Proposals for light maintenance, or "handyman" services, for the fire stations and lifeguard facilities. Staff is now recommending that this contract process be used to include all facilities as needed and be managed under GSD. Fire Department personnel will submit work requests to GSD facility maintenance division and staff will determine when to utilize an outside contractor or to save costs by using existing staff. Request for Proposal Process and Bid Results On April 1, 2010, the Administrative Services Department issued a Request for Proposal (RFP) for light maintenance ( "handyman ") services for the City's fire stations and life guard headquarters. The RFP was posted on the City of Newport Beach website and mailed to several firms that were registered with the City at the time. On April 15, 2010, the City received the following two bids in response to the RFP: JM Rabun $42.00 per hour /no after -hour or premium charges R.G. Fleming, Inc $75.00 per hour /$10.00 per hour extra charge for after -hour work Both companies have extensive experience in maintenance and repair of City facilities. FUNDING AVAILABILITY: Adequate funding has been included in FY 2010 -11 budget for facilities maintenance. ENVIRONMENTAL REVIEW: 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. PUBLIC NOTICE: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). LEGAL REVIEW: The City Attorney's Office has reviewed this report and signed the attached Agreement. Submitted by: Attachments: (specifications, bid results, agreement, etc.) ON -CALL AGREEMENT FOR MAINTENANCE AND REPAIR SERVICES FOR CITY OF NEWPORT BEACH FACILITIES WITH JOHN M. RABUN DBA J.M. RABUN COMPANY THIS ON -CALL AGREEMENT FOR MAINTENANCE AND REPAIR SERVICES ( "Agreement" or "Contract ") is made and entered into as of this day of October, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and Charter City ( "City "), and JOHN M. RABUN, doing Business as ( "DBA ") J.M. RABUN COMPANY, a sole proprietorship, whose principal place of business is 24086 Fawnskin Drive, Corona, California 92883 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 requires general repair and maintenance services on an as- needed and emergency on -call basis for all City of Newport Beach facilities. C. City desires to engage Contractor to provide general as- needed and emergency on -call repair and maintenance services for all City of Newport Beach facilities ( "Project "). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price 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 be for a period of three (3) year(s), commencing on the above written date and shall terminate on October 11, 2013, unless terminated earlier as set forth herein. 2. SCOPE OF SERVICES Contractor shall provide "on- call" and "emergency" repair and maintenance services as described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this reference ( "Services" or "Work"). As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Contractor shall perform everything 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. Upon verbal or written request from the Project Administrator or designee (as defined in Section 6 below), Contractor shall provide a letter proposal for Services requested by the City. The letter proposal shall include the following: A. A detailed description of the Services to be provided; B. The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the Services; and D. The time needed to finish the specific project. No Services shall be provided until the Project Administrator, as defined in Section 6, has provided written acceptance of the letter proposal. The Project Administrator shall be authorized to provide written acceptance of letter proposals for Services. Once authorized to proceed, Contractor shall diligently perform the duties in the approved letter proposal. Work that is outside of the scope of work described in the letter proposal shall not be performed without written authorization from the Project Administrator. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 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 to the other party so that all delays can be addressed. Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as soon as reasonably possible, but no event later than ten (10) 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. For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. John M. Rabun, DBA J.M. Rabun Company Page 2 4. COMPENSATION TO CONTRACTOR 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 Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City, except for the annual adjustment in proportion to changes in the Consumer Price Index as more particularly described Section 4.1 below. Contractor's compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed the fees identified in the individual letter proposals, as approved by the Project Administrator. Total compensation paid to Contractor during the term of this Agreement shall not exceed Three Hundred Thousand Dollars and no /100 ($300,000.00) without written amendment to the Agreement. 4.1 CONSUMER PRICE INDEX. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rates to be paid by the City as set forth in Exhibit B shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original rate 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 one (1) year prior. For example, if the adjustment is to occur effective June 1, 2011, the index to be used for the numerator is the index for the month of March 2011 and the index to be used for the denominator is March 2010. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). 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 Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. 4.2 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person and /or classification of employee who performed the Work, a brief description of the Services performed and /or the specific task from the letter proposal 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) days after approval of the monthly invoice by City staff. John M. Rabun, DBA J.M. Rabun Company Page 3 4.3 City shall reimburse Contractor only for those costs or expenses specifically approved in the letter proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.4 Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the Project Administrator to be necessary for the proper completion of the Project, but which is not included within the letter proposal and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. WORK DEFICIENCIES AND CORRECTIONS 5.1 The Contractor's performance will be evaluated on a regular basis. When problems are identified, the City will notify Contractor. If issues are serious or go unresolved, a "Notice of Deficiency" will be issued to Contractor in writing. This notice will detail the issues and give a cure period to resolve them. 5.2 Failure to correct the deficiencies listed in the Notice of Deficiency within the timeframe specified by the City may, in the City's sole discretion, result in action being taken by the City, including, but not limited to, (a) withholding payment for the subject deficiency until the work is completed; (b) correcting the deficiency (using the City's own work force and /or by contracting out) and deducting any associated costs plus overhead incurred thereby from the total monthly compensation due the Contractor; (c) contracting with another Vendor to perform the maintenance and other Services required for the remainder of the term of the Contract; (d) terminating the agreement; and /or (e) taking any other action and exercising any other legal remedy available to the City under law. 6. ADMINISTRATION This Agreement will be administered by the City's General Services Department. Mike Pisani, Deputy General Services Director, or his /her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or an authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1 All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate John M. Rabun, DBA J.M. Rabun Company Page 4 with Highest Professional Standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 7.2 Contractor represents and warrants to City that it has or shall obtain, and shall keep in full force and effect during the term of this Agreement, 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 in the State of California. This shall include but not be limited to, a current, valid license with the Contractors State License Board. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 7.3 Contractor shall use only the standard materials described in Exhibit A, or in the letter proposal for Services in performing Services under this Agreement. Any deviation from the materials described in Exhibit A or the letter proposal shall not be installed unless approved in advance by the Project Administrator. 8. RESPONSIBILITY FOR DAMAGES OR INJURY 8.1 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, tools, equipment 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 workers. 8.2 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 supplier selected by the Contractor. 8.3 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, attorney's 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 John M. Rabun, DBA J.M. Rabun Company Page 5 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 for any or all of them). 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 attorney's 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 the Contractor. 8.4 Contractor shall perform all Project 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 Project work. 8.5 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. 8.6 The rights and obligations set forth in this Section shall survive the termination of this Contract. 9. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the 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 express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 10. 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 the Contractor on the Project. 11. 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 John M. Rabun, DBA J.M. Rabun Company Page 6 Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Contractor's billing rates. A. Coverage and Limit Requirements. i. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. ii. General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. iii. Automobile Liability. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the 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 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. iv. Builders Risk. For Contracts with Construction /Builders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special form causes of loss with limits equal to one hundred percent (100 %) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and /or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. B. Other Insurance Provisions or Requirements John M. Rabun, DBA J.M. Rabun Company Page 7 L 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 an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. ii. General liability insurance provisions Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 1) City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 2) Contractor's insurance coverage shall be primary insurance and /or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or Services provided to the City. Any insurance or self- insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3) Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. iii. 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. John M. Rabun, DBA J.M. Rabun Company Page 8 iv. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for thirty (30) days written notice to City of cancellation or nonrenewal, except for nonpayment for which ten (10) days notice is required. v. Self- Insured Retentions. Contractor agrees not to self - insure or to use any self- insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self- insure its obligations to City. If contractor's existing coverage includes a self- insured retention, the self- insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self- insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. vi. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. vii. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, 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 and insurance clauses from each of its subcontractors. viii. Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iv. 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. x. City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and /or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the John M. Rabun, DBA J.M. Rabun Company Page 9 required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. xi. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. xii. Coveraoe Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 12. PREVAILING WAGES It is agreed by the parties that in connection with the design, development, installation and construction of any public work (as defined by applicable law), if any, Contractor shall bear all risks of payment or non - payment of state prevailing wages and /or the implementation of Chapter 804, Statutes of 2003 and /or Labor Code sections 1726 and 1781 as the same may be enacted adopted or amended from time to time and /or any other provision of law. 13. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Contractor. Assignments of any or all rights, duties or obligations of the Contractor under this Agreement shall be permitted only with the express written consent of City. Contractor shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 14. 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 Contract. 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. John M. Rabun, DBA J.M. Rabun Company Page 10 15. CONFLICTS OF INTEREST The 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 Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 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 Contract by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 16. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Mark Harmon, Director General Services Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3055 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: John M. Rabun J.M. Rabun Company P.O. Box 422 Corona, CA 92625 949 - 836 -1522 17. TERMINATION 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. John M. Rabun, DBA J.M. Rabun Company Page 11 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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 materials purchased in performance of this Agreement. 18. 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. 19. WAIVER A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 20. INTEGRATED AGREEMENT 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. 21. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services, the terms of this Agreement shall govern. 22. 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. 23. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Sites, has become familiar with the local conditions under which the Work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 24. CONTROLLING LAW AND VENUE John M. Rabun, DBA J.M. Rabun Company Page 12 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. 25. 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. 26. RECORDS Contractor shall keep records and invoices in connection with the work 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. 27. CLAIMS The Contractor and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the California Government Tort Claims Act (Government Code sections 900 et seq.). 28. 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, religion, color, national origin, handicap, ancestry, sex or age. John M. Rabun, DBA J.M. Rabun Company Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: /� 0 By: Leonie Mulvihill Assistant City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Keith D. Curry, Mayor CONSULTANT: JOHN M. RABUN, Doing Business as ( "DBA ") J.M. RABUN COMPANY, a sole proprietorship, a Date: By: John M. Rabun Principal Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates John M. Rabun, DBA J.M. Rabun Company Page 14 ON -CALL MAINTENANCE /REPAIR SERVICES AGREEMENT WITH JOHN M. RABUN DBA J.M. RABUN COMPANY EXHIBIT A - SCOPE OF SERVICES Contractor shall provide the following services at City of Newport Beach facilities pursuant to this Agreement: • General Carpentry (removal and installation) e.g.: Interior and exterior doors, cabinet work • Painting e.g.: Interior and exterior • Minor Plumbing Repairs e.g.: Water heater replacement, faucets • 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 • Assembly of Manufactured Items • Miscellaneous Repair Work (removal and installation) e.g.: Window coverings, windows and screens, drywall • Minor Roof Repairs • Liaison with Contractors/Vendors On -Call Maintenance /Repair Services Agreement with John M. Rabun DBA J.M. Rabun Company Exhibit B -9 ON -CALL MAINTENANCE /REPAIR SERVICES AGREEMENT WITH JOHN M. RABUN DBA J.M. RABUN COMPANY EXHIBIT B — RATES General Handiyatan Serviees S _ � r hour ' �� Adtliiioual QN Premium i0fs hour 0m- , ° Procurement of Job Materials — � -!(� � hour `desge (if any) per €Hale tones! Randm"n Services- Ptcose Prom Your hourly sate for performing those services listed shove in Attachment C. AddyiMgI or Premiom Clo rgess: If applicable, pleaw propose any additional charges you would bill the City if called upon to perform handyman services during times that the contractor deems "not typical," such a- during weekends or nights. i• x x 1 P rt t, 9 xx a: A t x f.. On -Cali Maintenance /Repair Services Agreement with John M. Rabun DBA J.M. Rabun Company Exhibit B -2