HomeMy WebLinkAbout10 - Approval of M/RSA
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NEWPORT BEACH
City Council Staff Report
CITY OF
February 23, 2016
Agenda Item No. 10
ABSTRACT:
The City of Newport Beach uses contract personnel to perform maintenance and repairs
throughout Newport Harbor. The existing agreement to provide maintenance, repair,
and abatement of various nuisances in the Harbor has been exhausted of its authorized
funds. A Request for Proposals was issued to obtain new proposals to continue
performance of these services. Staff requests City Council approval to enter into a
Maintenance/Repair Services Agreement with Newport Dredging Company, Inc., DBA
South Mooring Company, for a total limit not to exceed $300,000 over three (3) years.
RECOMMENDATION:
a) Approve a Maintenance Repair Services Agreement with Newport Dredging
Company, Inc., DBA South Mooring Company for three (3) years and a total limit not to
exceed $300,000.00, and authorize the Mayor and City Clerk to sign the agreement;
b) Approve Budget Amendment No. 16BA-034 appropriating $100,000.00 from
Tidelands Maintenance Fund unappropriated fund balance to Account No. 10080802-
851041 (Harbor Resources Maintenance – Piers, Floats, Docks Moorings); and
c) Authorize agreement to be effective January 1, 2016 to allow for continuous
service.
FUNDING REQUIREMENTS:
The Budget Amendment records and appropriates $100,000.00 in increased
expenditure appropriations from Tidelands Maintenance Fund unappropriated fund
balance to Account No. 10080802-851041 (Harbor Resources Division Maintenance –
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Shannon L. Levin, Harbor Resources Supervisor,
Shannon@newportbeachca.gov
PHONE: 949-270-8158
TITLE: Approval of Maintenance Repair Services Agreement with Newport
Dredging Company, Inc., DBA South Mooring Company
Approval of Maintenance Repair Services Agreement with Newport Dredging Company,
Inc., DBA South Mooring Company
February 23, 2016
Page 2
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Piers, Floats, Docks, Moorings). Funding for maintenance and repair services will need
to be continued into future fiscal years.
The current adopted Capital Improvement Program (CIP) budget includes sufficient
funding for expenses related to the removal and disposal of derelict vessels from
Newport Harbor. These costs will be expensed to the Abandoned Watercraft Abatement
project in the CIP budget, Account No. 15H24-unassigned-135-unassigned, which is
funded by a grant from the State Division of Boating and Waterways.
Account Description Account Number Amount
Harbor Resources: Maintenance -
Piers, Floats, Docks, Moorings 10080802-851041 $100,000.00
Abandoned Watercraft Abatement
Project (SAVE Grant)15H24-unassigned-135-unassigned $ 50,000.00
Estimated Use through June 30, 2016 $150,000.00
Harbor Resources: Maintenance -
Piers, Floats, Docks, Moorings
Estimated Use Tidelands Maintenance
July, 2016 – December, 2018 $ 90,000.00
Abandoned Watercraft Abatement
Project (SAVE Grant)
Estimated Use SAVE Grant
July, 2016 – October, 2016 $ 60,000.00
$300,000.00
Proposed uses are as follows:
Vendor Purpose Amount
South Mooring Company Harbor maintenance, repair, cleaning $190,000.00
South Mooring Company Derelict boat removal and disposal $110,000.00
$300,000.00
DISCUSSION:
The City uses private sector contractors and consultants to fulfill many operational and
maintenance needs of Newport Harbor. Contracted work includes mooring
management, marina management, dock and marina repairs, beach maintenance,
mooring maintenance, engineering services and other services as needs arise.
Following a competitive process, Newport Dredging Company, Inc. DBA South Mooring
Company was awarded a Maintenance/Repair Services Agreement in February 2015.
Compensation was set not to exceed $120,000.00 with a term good through October
2017. Within the first year, compensation limits have been reached due to the increased
high demand for service, including: mooring maintenance; debris log boom installation;
maintenance and retrieval; derelict boat demolition; twice weekly and quarterly public
dock inspection, cleaning and maintenance; sea lion deterrent operations; and minor
public dock maintenance. Additional harbor maintenance services are performed by
other businesses as needed.
Approval of Maintenance Repair Services Agreement with Newport Dredging Company,
Inc., DBA South Mooring Company
February 23, 2016
Page 3
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A new Request for Proposals for harbor maintenance services was released to the
public in December 2015. Proposers had the option to bid on any or all items within the
Scope of Services. Three (3) firms submitted proposals. One (1) firm proposed to
provide only mooring maintenance. Costs for services vary for each job task. Each
proposal was individually evaluated and scored by a three-member panel on the basis
of qualifications, experience, project approach and understanding, and references.
Those scores are tallied and ranked as follows:
Rank Proposer
Score
(out of 70)
1 South Mooring Company 60
2 John S. Meek Company, Inc.37
3 American Marine, Inc.15
Increased use of public amenities has resulted in increased focus on issues such as
accessibility and availability of vessel pumpout stations, cleanliness of public piers, and
remediation of derelict vessels. Approving this agreement allows staff to carry on
operations quickly and with exceptional service. It is also anticipated that derelict boat
demolitions will total $65,000.00 through June 2016 and $60,000.00 from July through
October 2016, to comply with the conditions of the Surrendered and Abandoned
Vessels Exchange grant from the Division of Boating and Waterways.
Staff recommends awarding a Maintenance Repair Services Agreement for Harbor
Services to South Mooring for three (3) years not to exceed $300,000. Approval of this
agreement also authorizes continuous service from the last agreement.
Approval of Maintenance Repair Services Agreement with Newport Dredging Company,
Inc., DBA South Mooring Company
February 23, 2016
Page 4
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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.
NOTICING:
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 – Maintenance Repair Services Agreement
Attachment B – Budget Amendment
MAINTENANCE/REPAIR SERVICES AGREEMENT
WITH SOUTH MOORING COMPANY FOR
HARBOR MAINTENANCE AND REPAIR SERVICES
THIS MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement")is
made and entered into as of this 1st day of January,2016 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH,a California municipal corporation and
charter city ("City"),and NEWPORT DREDGING COMPANY,INC.,a California
corporation,DBA SOUTH MOORING COMPANY ("Contractor"),whose address is Post
Office Box 528,Newport Beach,California 92661,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 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 December 31,2018,unless terminated earlier as set forth herein.
2.SERVICES TO BE PERFORMED
2.1 Contractor shall diligently perform all the services described in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference
("Services"or "Work"). As a material inducement to 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 community
professional standards with the ordinary degree of skill and care that would be used by
other reasonably competent practitioners of the same discipline under similar
ATTACHMENT A
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circumstances,in performing the Work required hereunder,and that all materials will be
of good quality.
2.2 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.
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. 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, ifany, 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 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 Thousand Dollars and 00/100 ($300,000.00),
without prior written amendment to the Agreement.
4.2 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.
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4.3 City shall reimburse Contractor only for those costs or expenses
specifically identified in Exhibit B to this Agreement,or specifically approved in writing in
advance by City.
4.4 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.
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 Charles South 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 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 Public Works Department.City's
Public Works Director 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 MATERIALS/STANDARD 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
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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,
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).
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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.
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 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
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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.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 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.
16.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.
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17.SUBCONTRACTING
The subcontractors authorized by City, if any,to perform Work on this Project are
identified in Exhibit A.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.
18.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 Contractor's expense,provide such Documents to
City upon prior written request.
19.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.
20.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.
21.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
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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.
22.CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project.
23.CONFLICTS OF INTEREST
23.1 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.
23.2 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.
24.NOTICES
24.1 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.
24.2 All notices,demands,requests or approvals from Contractor to City shall
be addressed to City at:
Attn:Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach,CA 92658
24.3 All notices,demands,requests or approvals from City to Contractor shall
be addressed to Contractor at:
Attn:Charles South
Newport Dredging Company,Inc.dba South Mooring Company
P.O.Box 528
Newport Beach,CA 92661
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25.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 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.).
26.TERMINATION
26.1 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.
26.2 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.
27.LABOR
27.1 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.).
27.2 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.
27.3 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.
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27.4 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.
28.STANDARD PROVISIONS
28.1 Recitals.City and Contractor acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference.
28.2 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.
28.3 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.
28.4 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.
28.5 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.
28.6 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.
28.7 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.
28.8 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.
28.9 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
Newport Dredging Company,Inc.dba South Mooring Company Page 10
10-14
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange,State of California.
28.10 Egual 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.
28.11 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.
28.12 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]
Newport Dredging Company,Inc.dba South Mooring Company Page 11
10-15
IN WITNESS WHEREOF,the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:2/J2/1
^2
Aaron C.Harp
City Attorney
CA*<tl\l*ll(p
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:.
Diane B.Dixon
Mayor
ATTEST:
Date:
CONTRACTOR:NEWPORT DREDGING
COMPANY,INC.,a California corporation
DBA SOUTH MOORING COMPANY
Date:
By:.
Leilani I.Brown
City Clerk
Attachments:
By:.
Charles South
President
Date:
By:.
Frank Kaiser
Assistant Secretary
[END OF SIGNATURES]
Exhibit A -Scope of Services
Exhibit B -Schedule of Billing Rates
Exhibit C -Insurance Requirements
Newport Dredging Company,Inc.dba South Mooring Company Page 12
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EXHIBIT A
SCOPE OF SERVICES
Newport Dredging Company,Inc.dba South Mooring Company Page A-1
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SCOPE OF SERVICES
Overview of Services Requested:
The following is a list of all the services requested as part of this RFP - proposers may submit
proposals on any or all of the requested services. Please refer to the Proposal Format Checklist
(Attachment A)for instructions on how to respond. Contractor will be responsible for deploying and
storing any vessels or equipment related to services.
1.Mooring Maintenance Services.
a. Includes inspection,testing,painting, and numbering of the City's mooring buoys,
inspection of mooring weight and replacement of chain and all other mooring
components on biannual basis or as needed,
i. Sign buoys and shore moorings
ii. Off shore moorings
iii.Mooring realignment
iv.Other mooring related services as applicable
2. Log boom.
a.Annual deployment and retrieval of log boom coordinated with City crew,
i.Deployment and retrieval
ii. Diver (if needed)
iii. Log boom adjustment
iv.Periodic removal of debris trapped by the log boom
v.Other log boom services as applicable
3.Sea Lion abatement.
a.Patrol with a small boat during peak sea lion season to deter haul outs and nuisance.This
service may be performed during nighttime hours.
b.Secure vessels or structures as requested by Harbor Resources.
4.Harbor Cleanup.
a.After storm events or as needed retrieve debris from Harbor and properly dispose of
materials.
5. Dock repair.
a.Includes but may not be limited to minor refurbishment such as replacement of piling and
rub rail,aligning or lifting gangway,replacing floats,cleats etc...
6.Boat Demolition.
a.Demolition of vessels may include but may not be limited to relocation,haul out at a local
shipyard or Rhine Wharf,demolition,and proper disposal.Contractor will not be
responsible for lien notifications and DMV processing.
7.Ongoing Dock Cleaning.
a. At least twice weekly and more often as requested by City,clean 11 public docks located
at:Opal Avenue,Sapphire Avenue,Coral Avenue,Emerald Avenue,Park Avenue,M
Street,Washington Street,Fernando Street,15th Street,19th Street,and Rhine Channel
4 | P age
10-18
b.Cleaning includes but may not be limited to removal of all trash and litter on public pier
and immediate area;cleaning offish boards;topical cleaning of float,gangway,pier and
railing from any nuisance.
8.Ongoing pumpout inspections.
a. As required by Cityof Newport Beach,inspect the four public pumpout stations located at
Fernando Street Public Pier,American Legion Pumpout Dock(2),and Washington Street
Public Pier.
b.Perform dye tests and vacuum testing as required by City.
9.Maintenance of pumpouts.
a. On-call maintenance of pumpouts as necessary.
b.Quarterly maintenance of the five public pumpouts located at Fernando Street Public
Pier,American Legion Pumpout Dock (2),Washington Street Public Pier,and Balboa Yacht
Basin.
c.Other pumpout maintenance or installation services as requested by Harbor Resources
Project Administration:
Based on the results of this solicitation process,the City may enter into one or more
maintenance/repair and/or on-call agreements (or a combination of both)with the proposer(s)deemed
most qualified for each of the services listed above.Maintenance agreements may have standard
recurring schedules for services.On-call agreements do not guarantee or imply any specific quantity of
work over the proposed contract period.When the need for services arises,the City shall request in
writing,the necessary services required in adequate detail.Contractor shall then provide a letter
proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal"). The Letter
Proposal shall include the following:
• A detailed description of the Services to be provided;
•The estimated number of hours and cost to complete the Services;and
•The time needed to finish the specific Project.
City will assess the Letter Proposal to ensure that services and costs proposed are commensurate
with those provided in the Contractor's RFP response.No Services shall be provided until the City has
provided written acceptance of the Letter Proposal.Once authorized to proceed,Contractor shall
diligently perform the duties in the approved Letter Proposal.
5 |Page
10-19
EXHIBIT B
SCHEDULE OF BILLING RATES
Newport Dredging Company,Inc.dba South Mooring Company Page B-1
10-20
Service Offerings
Mooring Services
a.Includes inspection,testing,painting,and numbering of the City's mooring buoys,
inspection of mooring weight and replacement of chain and all other mooring
components on biannual basis or more frequently,as needed.
• Sign buoys and shore moorings
• Off shore moorings
•Mooring realignment
•Other mooring related services as applicable
b.Cost of Services
• Sign Buoysand shore moorings $190.00 plus parts at cost plus 15%
• Off shore moorings $385.00 plus parts at cost plus 15%
• Mooring realignment $115.00
Log Boom Services
a.Annual deployment and retrieval of log boom coordinated with City crew.
•Deployment and retrieval
• Diver (if needed)
• Log boom adjustment
•Periodic removal of debris trapped by the log boom
•Other log boom services as applicable
b.Cost of Services
• Deployment and retrieval $385.00 hr. plus parts at cost plus 15%
• Diver if needed $175.00
•Log boom adjustment $385.00
•Periodic removal of debris $385.00
trapped by the log boom
Sea Lion abatement
a.Patrol with a small boat during peak sea lion season to deter haul outs and nuisance.
This service may be performed during nighttime hours.
b.Secure vessels or structures as requested by Harbor Resources
c.Cost of Services
• Sea Lion abatement boat and man $100.00 hr.
Harbor Clean-up
a. After storm events or as needed retrieve debris from Harbor and proper disposal of
materials.
b.Cost of Services
• Harbor clean up barge $385.00
10-21
5.Boat Demolition
a.Demolition of vessels may include but may not be limited to relocation,haul out at a
local shipyard or Rhine Wharf,demolition and proper disposal
b.Cost of Services
• Bid per project
6. Dock Cleaning
a. At least twice weekly and more often as requested by City, Clean 11 public docks.Refer
to Figure A for a map of dock locations.
b.Cleaning includes but may not be limited to removal of all trash and litter on public pier
and immediate area;cleaning offish boards;topical cleaning of float,gangway pier and
railing from any nuisance.
c.Cost of Services
• DockCleaning $70.00 hr. 2 days per week
7.Ongoing Pumpout Inspections
a. As required by Cityof Newport Beach,inspect the four public pump out stations located
at Fernando Street Public Pier,American Legion Pump out Dock,and Washington Street
Public Pier.
b.Perform dye tests and vacuum testing as required by City.
c.Maintenance of pumpouts.
d. On-call Maintenance of pump outs as necessary
e.Quarterly maintenance of the five public pump outs located at Fernando Street Public
Pier,American Legion Pump out Dock (2),Washington Street Public Pier,and Balboa
Yacht Basin.
f.Cost of Services
• Pump out inspection $70.00 hr. 2 days per week
• Pump out mechanic labor $100.00 hr.materials plus 15%
• Pump out mechanic travel $20.00 hr.
• Pump out mechanic mileage $0.50 per mile
8. Dock repair
a.Includes but may not be limited to minor refurbishment such as replacement of piling
and rub rail,aligning or lifting gangway,replacing gloats,cleats etc.
b.Cost of Services
• Piling replacement Bid per project
•Other repairs $70.00 hr.
Organizational Information
Main point of contact:Chuck South -President
Office Staff:Frank Kaiser
(For information on Deborah Marley
Billing,insurance,scheduling,
and human resources)
10-22
EXHIBIT C
INSURANCE REQUIREMENTS -MAINTENANCE/REPAIR/JANITORIAL 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 officers,
agents,employees and volunteers.
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
Newport Dredging Company,Inc.dba South Mooring Company Page C-1
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vehicles,in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
D.Pollution Liability Insurance.If required,Contractor shall maintain a policy
providing contractor's pollution liability ("CPL")coverage with a total limit of
liability of no less than one million dollars ($1,000,000)per loss and one
million dollars ($1,000,000)in the aggregate per policy period.Claims-
made policies require a 5-year extended reporting period.The CPL policy
shall include coverage for cleanup costs,third-party bodily injury and
property damage,including loss of use of damaged property or of property
that has not been physically injured or destroyed,resulting from pollution
conditions caused by contracting operations.Coverage as required in this
paragraph shall apply to sudden and non-sudden pollution conditions
resulting from the escape or release of smoke,vapors,fumes,acids,
alkalis,toxic chemicals,liquids,or gases,waste materials,or other
irritants,contaminants,or pollutants.The CPL shall also provide coverage
for transportation and off-Site disposal of materials.The policy shall not
contain any provision or exclusion (including any so-called "insured versus
insured"exclusion or "cross-liability"exclusion)the effect of which would
be to prevent,bar,or otherwise preclude any insured or additional insured
under the policy from making a claim which would otherwise be covered
by such policy on the grounds that the claim is brought by an insured or
additional insured against an insured or additional insured under the
policy.
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 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
from each of its subconsultants.
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 and its officers,officials,employees,and agents 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.
Newport Dredging Company,Inc.dba South Mooring Company Page C-2
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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 Reguirements.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
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 20 38 04 13.
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.Reguirements 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,
Newport Dredging Company,Inc.dba South Mooring Company Page C-3
10-25
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 sub
consultant 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 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.
I.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.
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10-27
ATTACHMENT B