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Home My WebLink AboutC-3936 - Contractor Agreement for City Facilities Refuse RemovalCONTINUATION CERTIFICATE Premium Amount: $100.00 The RLI Insurance Company (hereinafter called the Surety) hereby continues in force its Bond No. CMS220475 in the sum of Five Thousand Dollars and 00/100 ($5,000.00) Dollars, on behalf of Ware Disposal, Inc. in favor of City of Newport Beach subject to all the conditions and terms thereof through September 12, 2015 at location of risk. This Continuation is executed upon the express condition that the Surety's liability shall not be cumulative and shall be limited at all times by the amount of the penalty stated in the bond. IN WITNESS WHEREOF, the Surety has caused this instrument to be signed by its duly authorized Attorney -in -Fact and its corporate seal to be hereto affixed this 26 day of August, 2014. RLI Insurance Company Surety By: _ A4�a-- Sarah ers At rney-in-Fact CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA County of San Diego On AUGG 2 6 Z014 Date before me, John Richard Flores JR. Insert Name of Notary exactly as it appears on the official seal personally appeared Sarah Myers Name(s) of Signer(s) , Notary Public, who proved to me on the basis of satisfactory evidence to be the personl(Vh whose name(g/j is/f')r# subscribed to the within instrument and acknowledged to me that 6#/she/ft# executed the same in ,N g/her/y1tr o/ authorized capacity(Y#M, and that by H161herIffi /d Signature& on the instrument the person(/A, or the entity upon behalf of which the person(/$h acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signatu Place Notary Seal AboveSignature ota ubi JOh chard Flores JR. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer Title(s):_ ❑ Partner ❑ Limited ❑ General Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Surety Company Signer's Name: ❑ Individual ❑ Corporate Officer Title(s): ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: JOH RICHARD r' ,0RES JR. zC�gsgr� COMM. #2035097 z Notary Public - California o San Diego County -� Mt comm. s Au . 8, 201ij .. ,,.,�.. , Notary Public, who proved to me on the basis of satisfactory evidence to be the personl(Vh whose name(g/j is/f')r# subscribed to the within instrument and acknowledged to me that 6#/she/ft# executed the same in ,N g/her/y1tr o/ authorized capacity(Y#M, and that by H161herIffi /d Signature& on the instrument the person(/A, or the entity upon behalf of which the person(/$h acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signatu Place Notary Seal AboveSignature ota ubi JOh chard Flores JR. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer Title(s):_ ❑ Partner ❑ Limited ❑ General Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: Surety Company Signer's Name: ❑ Individual ❑ Corporate Officer Title(s): ❑ Partner ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: I RLI ® RLI Surety P.O. Box 3967 1 Peoria, IL 61612-3967 Phone: (800)645-2402 1 Fax: (309)689-2036 www.rlicorp.com Know All Men by These Presents: POWER OF ATTORNEY RLI Insurance Company That this Power of Attorney is not valid or in effect unless attached to the bond which it authorizes executed, but may be detached by the approving officer if desired. That RLI Insurance Company, an Illinois corporation, does hereby make, constitute and appoint: Lawrence F. McMahon. James Baldassare Jr.. Sarah Myers Charlotte Aquino jointly or severally in the City of San Diego , State of California its true and lawful Agent and Attorney in Fact, with full power and authority hereby conferred, to sign, execute, acknowledge and deliver for and on its behalf as Surety, the following described bond. Any and all bonds provided the bond penalty does not exceed Twenty Five Million Dollars ($25,000,000.00). The acknowledgment and execution of such bond by the said Attorney in Fact shall be as binding upon this Company as if such bond had been executed and acknowledged by the regularly elected officers of this Company. The RLI Insurance Company further certifies that the following is a true and exact copy of the Resolution adopted by the Board of Directors of RLI Insurance Company, and now in force to -wit: "All bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, any Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or Agents who shall have authority to issue bonds, policies or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile." IN WITNESS WHEREOF, the RLI Insurance Company has caused these presents to be executed by its Vice President with its corporate seal affixed this 8th day of April , 2013 ?$ GpPP: M tF� State of Illinois SS County of Peoria On this 8th day of April 2013 before me, a Notary Public, personally appeared Roy C. Die , who being by me duly sworn, acknowledged that he signed the above Power of Attorney as the aforesaid officer of the RLI Insurance Company and acknowledged said instrument to be the voluntary act and deed of said corporation. By: Jacque ' e M. Bockler Notary Public NOTARY "OFFICIAL SEAL" "'�Br� JACQUELINE M. BOCKLER STATE OF auras COMMISSION EXPIRES 03H9H4 rvvvr MTV 0441951020212 RLI Insurance Company By: L Roy C. Di Vice President CERTIFICATE I, the undersigned officer of RLI Insurance Company, a stock corporation of the State of Illinois, do hereby certify that the attached Power of Attorney is in full force and effect and is irrevocable; and furthermore, that the Resolution of the Company as set forth in the Power of Attorney, is now in force. In testimony whereof, I have hereunto set my hand and the seal of the RLI Insurance Company this day of AUG 26 2.014, RLI Insurance Company By: Roy C. Di Vice President A0058707 AMENDMENT NO. ONE TO CONTRACTOR AGREEMENT WITH WARE DISPOSAL, INC. FOR CITY FACILITIES REFUSE REMOVAL THIS AMENDMENT NO. ONE TO CONTRACTOR AGREEMENT ("Amendment V-) No. One") is made and entered into as of this 2-A day of April, 2013 ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and WARE DISPOSAL, INC., a California corporation ("Contractor'), whose address is 1035 East Fourth Street, Santa Ana, CA 92701 and is made with reference to the following: RECITALS A. On October 14, 2008, City and Contractor entered into a Contractor Agreement ("Agreement") for City facilities refuse removal ("Project"). B. On March 18, 2011, the Director of the Municipal Operations Department executed an Addendum to City Facilities Refuse Removal Agreement to increase the Scope of Work and compensation paid to Contractor. C. City desires to enter into this Amendment No. One to reflect the additional services not included in the Agreement and to increase the total compensation. D. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: COMPENSATION TO CONTRACTOR The introductory paragraph to Section 4 of the Agreement shall be superseded and replaced as of the Effective Date of this Amendment No. One with the following: City shall pay Contractor the sum of Thirty Four Thousand Six Hundred Twenty -Four Dollars and 09/100 $34,624.09 per year for all work and services to be performed under this Agreement on a monthly basis as provided herein and in Exhibit A ("Contract Amount"). City shall pay Contractor the unit process set forth in Exhibit A, which is attached hereto and incorporated herein by this reference, for all work and services to be performed under this Agreement that are in addition to the annual services and which are approved by the City in writing prior to the performance of the work. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] WARE DISPOSAL, INC. Page 1 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RhIY'S OFFICE Date: ? By: Aaron C. Harp City Attorney ATTEST: Date: LL By: pl�lw— Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, A California municipal corporation Date: SI ni n By: Dave i City Manager CONSULTANT: WARE DISPOSAL, INC., a California corporation Date: 4 -2-1 - I?) By: J di FWare: sid Date: 'Z0 i By: Be are Vice President [END OF SIGNATURES] Exhibit A – Contract Amount & Unit Price WARE DISPOSAL, INC. Page 2 Location Balboa Yacht Basin Central Library City Hall City Hall (recycling) Fire Station #2 Corporation Yard Fire Station #3 Fire Station #5 Fire Station #6 Fire Station #7 Fire Station #8 Lawn Bowling Center Lincoln Elementary Marina Park Community Center Oasis Senior Center Oil Tank Farm Police Station Utilities Yard Washington St (37 weeks) Washington St (15 weeks) Tota! Annual Cost Exhibit A Contract Amount & Unit Price 829 Harbor Island Or 1000 Avocado Ave 100 Civic Center Drive 100 Civic Center Drive 475 32nd St 592 Superior Ave 868 Santa Barbara 410 Marigold Ave 1348 Irvine Ave 20401 Acacia St 6502 Ridge Park Rd 1550 Crown Dr 3101 Pacific View 1770 W Balboa Blvd 6401 San Joaquin Hills Rd 800 Marguerite Ave 5900 W Coast Highway 870 Santa Barbara 949 W 16th St 210 Washington St 210 Washington St (52 weeks) WOf eekly y Bins Bin Size Frequency & Ceastl 7 3 -yd 3x TBD $111.07 2 3 -yd 3x TBD $31.44 1 3 -yd 5x M -F $26.20 1 3 -yd 1x TBD $11.54 1 3 -yd 2x TBD $15.72 1 4 -yd 1x TBD $10.48 1 3 -yd 2x TBD $10.48 1 3 -yd 1x TBD $6.29 1 3 -yd 1x TBD $6.29 1 3 -yd 2x TBD $12.57 1 3 -yd 1x TBD $5.24 1 3 -yd 1x TBD $5.24 1 3 -yd ix TBD $5.24 10 3 -yd 1x TBD $52.39 1 3 -yd 2x TBD $10.48 1 3 -yd 3x TBD $5.24 1 3 -yd 1x TBD $31.44 1 3 -yd 6x M-Sa $1512 3 3 -yd 1x TBD $15.72 6 4 -yd 6x M-Sa $261.97 6 4 -yd 7x M -Su $314.36 $34,624.09' Unit prices shall be negotiated on a per -location basis as additions or reductions in service are deemed necessary. o� City of Newport Beach Utilities Department Ware Disposal, Inc. 1035 East Fourth St, Santa Ana, CA 92701 Attn: Jay Ware RECEIVED 7011 MAR 30 PM 5: 35 OFFICE OF CITY Subject: Addendum to City Facilities Refuse Removal Agreement Dear Mr. Ware, 15, 2011 On October 14, 2008, the City of Newport Beach ("City') entered into an agreement with Ware Disposal, Inc. (Contractor) for the collection of commercial refuse from various city facilities. Effective Friday, March 18, 2011 the City wishes to increase the Scope of Work (Exhibit A) to include one (1) 4 -yd bin collected one (1) time per week at the City Corporation Yard located at 592 Superior Ave at a cost of $10 per week. Please sign below to indicate your acknowledgement of the City's request to increase the Scope of Work of the Agreement and promptly return this signed acknowledgment to Mr. Mike Pisani, Deputy Municipal Operations Director. Judi are, President Sincerely, Mark Harmon, Director Municipal Operations Department Enclosure: Exhibit A /� !! Date Exhibit A Contract Amount & Unit Price Location of Bins Bi Size Weekly Frequency & Days - Weekly Cost Balboa Yacht Basin 829 Harbor Island Dr 7 3 -yd 3x TBD $106.00 Central Library 1000 Avocado Ave 2 3 -yd 3x TBD $30.00 City Hall 3300 Newport Blvd 1 3 -yd 5x M -F $25.00 Fire Station #2 475 32nd St 1 3 -yd 2x TBD $15.00 Corporation Yard 592 Superior Ave 1 4 -yd 1x TBD $10.00 Fire Station #3 868 Santa Barbara 1 3 -yd 2x TBD $10.00 Fire Station #5 410 Marigold Ave 1 3 -yd 1x TBD $6.00 Fire Station #6 1348 Irvine Ave 1 3 -yd 1x TBD $6.00 Fire Station #7 20401 Acacia St 1 3 -yd 2x TBD $12.00 Fire Station #8 6502 Ridge Park Rd 1 3 -yd 1x TBD $5.00 Lawn Bowling Center 1550 Crown Dr 1 3 -yd 1x TBD $5.00 Lincoln Elementary 3101 Pacific View 1 3 -yd 1x TBD $5.00 Marina Park 1770 W Balboa Blvd 10 3 -yd 1x TBD $50.00 Community Center 6401 San Joaquin Hills Rd 1 3 -yd 2x TBD $10.00 Oasis Senior Center 800 Marguerite Ave 1 3 -yd 3x TBD $5.00 Oil Tank Farm 5900 W Coast Highway 1 3 -yd 1x TBD $30.00 Police Station 870 Santa Barbara 1 3 -yd 6x M-Sa $15.00 Utilities Yard 949 W 16th St 3 3 -yd 1x TBD $15.00 Washington St (37 weeks) 210 Washington St 6 4 -yd 6x M-Sa $250.00 Washington St (15 weeks) 210 Washington St 6 4 -yd 7x M -Su $300.00 Total Annual Cost (52 weeks) $32,470.00 Unit prices shall be negotiated on a per -location basis as additions or reductions in service are deemed necessary. Revised: March 15, 2011 Effective: March 18, 2011 2 C-,; ace (A-) CITY OF NEWPORT BEACH CONTRACTOR AGREEMENT WITH WARE DISPOSAL, INC. FOR CITY FACILITIES REFUSE REMOVAL THIS AGREEMENT, entered into this 14th day of October of 2008, by and between the City of Newport Beach, a Municipal Corporation and Charter City ("City"), and, Ware Disposal, Inc., a California Corporation located at 1035 East Fourth St, Santa Ana, CA 92701 ("Contractor"), is made with reference to the following Recitals: RECITALS WHEREAS, the City desires to obtain contract services for the collection of commercial refuse from eighteen (18) city facilities; WHEREAS, on August 27, 2008 a Request for Proposals (RFP) requesting proposals for the collection of commercial refuse from various city facilities was mailed to franchised haulers; WHEREAS, ("Contractor") submitted the lowest bid among the firms which responded to the RFP; WHEREAS, the Contractor desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement; WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, 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, the Parties agree as follows: TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the Term of this Agreement shall be for a period of four (4) years. The term shall commence on November 1, 2008, after City Council approval of this Agreement, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Contract Services") as described in the RFP and the Contractor's proposal. The RFP is are attached hereto as Exhibit C and incorporated herein by this reference. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of refuse collection as necessary to ensure highest industry standards. 3. WORKMANSHIP, SUPERVISION, AND EQUIPMENT A. All work shall be performed in accordance to the highest industry standards of refuse collection. B. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. C. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. D. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Director when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. F. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor. G. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. 2 4. COMPENSATION TO CONTRACTOR City shall pay Contractor the sum of $31,950.00 per year for all work and services to be performed under this Agreement on a monthly basis as provided herein and in Exhibit A ("Contract Amount'). City shall pay Contractor the unit prices set forth in Exhibit A, which is attached hereto and incorporated herein by this reference, for all work and services to be performed under this Agreement that are in addition to the annual services and which are approved by the City in writing prior to the performance of the work. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. A. Contractor shall submit separate monthly invoices, by facility, to the City describing the work performed the preceding month. Contractor's bills shall include the total number, the location, and the date of all bins serviced. The City shall pay Contractor based on the percentage of the total work completed. For unit priced work approved by the City in writing that is in addition to the annual work, the City shall pay Contractor based on the Unit Prices contained in Exhibit A. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. B. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit A. C. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount to be paid by the City as set forth above and in Exhibit A and the unit prices set forth in Exhibit A, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original amounts 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, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. 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 3 adjustment date, it shall be constructed by conversion tables including in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. 5. 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. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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, attomey'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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or 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. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. L Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 5 iii. Automobile Liability Coverage. 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 two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following speck language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insureds as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional 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. 9 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT 10, A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the City Administrator within ten (10) days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. rl 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall fumish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perforrn additional/emergency services as requested by the Administrator. Contractor must obtain written authorization from the City Administrator prior to the performance of any additional/emergency services. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit A. B. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period of less than a full four (4) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. E; B. 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 notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, Contractor, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. 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 termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard N7 PO Box 1768 Newport Beach, CA 92658-8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Ware Disposal, Inc. 1035 East Fourth St, Santa Ana, CA 92701 20. TERMINATION/DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate cleaning standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 21. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 10 22. WAIVER A waiver by City 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. 23. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 24. 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. 25. 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. 26. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 27. 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. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Faithful Performance Bond in the amount of fifty percent (50%) of the total amount. 11 The Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California; (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570; and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The Contractor shall deliver, concurrently with execution of this Agreement, the Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. 1 -*9 APPROVED AS TO FORM: r-�--- \ C ffc-�� Aaron C. Harp, Asst. City Attorney for the City of Newport Beach ATTEST: By6406q� �0, Z�" LaVonne Harkless, City Clerk CITY I N PO�EACH, � A ni� pal, O po i n Edward'D. Selich, Mayor for the City of Newport Beach CONSULTANT: By: &— (Corporate Officer) Title: yl/(� - ;/ e6,tde) T Print Name: 3�0 (r jAkle By: (Financial Officer) Title: ES tld- - Print Name: Attachments: Exhibit A - Contract Amount & Unit Price Exhibit B - Performance Bond Exhibit C—Request for Proposal 12 Location Balboa Yacht Basin Central Library City Hall Fire Station #2 Fire Station #3 Fire Station #5 Fire Station #6 Fire Station #7 Fire Station #8 Lawn Bowling Center Lincoln Elementary Marina Park Community Center Oasis Senior Center Oil Tank Farm Police Station Utilities Yard Washington St (37 weeks) Washington St (15 weeks) Total annual Cost Exhibit A Contract Amount & Unit Price # of Bin Size Bins 829 Harbor Island Dr 7 3 -yd 1000 Avocado Ave 2 3 -yd 3300 Newport Blvd 1 3 -yd 475 32nd St 1 3 -yd 868 Santa Barbara 1 3 -yd 410 Marigold Ave 1 3 -yd 1348 Irvine Ave 1 3 -yd 20401 Acacia St 1 3 -yd 6502 Ridge Park Rd 1 3 -yd 1550 Crown Dr 1 3 -yd 3101 Pacific View 1 3 -yd 1770 W Balboa Blvd 10 3 -yd 6401 San Joaquin Hills Rd 1 3 -yd 800 Marguerite Ave 1 3 -yd 5900 W Coast Highway 1 3 -yd 870 Santa Barbara 1 3 -yd 949 W 16th St 3 3 -yd 210 Washington St 6 4 -yd 210 Washington St 6 4 -yd (52 weeks) Weekly Frequency & Days 3x TBD 3x TBD 5x M -F 2x TBD 2x TBD 1x TBD 1x TBD 2x TBD 1x TBD 1x TBD 1x TBD 1x TBD 2x TBD 3x TBD 1x TBD 6x M-Sa 1x TBD 6x M-Sa 7x M -Su Weekly Cost $106.00 $30.00 $25.00 $15.00 $10.00 $6.00 $6.00 $12.00 $5.00 $5.00 $5.00 $50.00 $10.00 $5.00 $30.00 $15.00 $15.00 $250.00 $300.00 $31,950.00 Unit prices shall be negotiated on a per -location basis as additions or reductions in service are deemed necessary. 13 CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ being at the rate of $ price. thousand of the Contract WHEREAS, the City of Newport Beach, State of California, has awarded to Ware Disposal, Inc., hereinafter designated as the "Principal," a contract for the FOR CITY FACILITIES REFUSE REMOVAL, located at 1035 East Fourth St, Santa Ana, CA, in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract. NOW, THEREFORE, we, the Principal, and 'duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of lawful money of the United States of America, said sum being equal to 50% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. 14 Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Contract or to the work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by the City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of October, 2008. Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 15 EXHIBIT C CITY OF NEWPORT BEACH Request for Proposal CITY FACILITIES REFUSE REMOVAL August 2008 I. II. IV. CITY OF NEWPORT BEACH Request for Proposal Currently commercial refuse is collected from eighteen (18) locations throughout the City. Refuse from 3 -yard and 4 -yard bins is collected at least once per week and, in selected areas on a more frequent basis, up to seven days per week. The objectives of this RFP are to obtain suitable proposals from qualified Contractors, review all proposals in a comprehensive manner, and select a qualified company for a City Facilities Refuse Removal contract. The City of Newport Beach is interested in receiving proposals from qualified contractors for commercial refuse removal from City facilities. After a careful review of each submitted proposal, the City will conduct an evaluation leading to the selection of a Contractor and the award of a contract. The resultant contract is intended as a four (4) year contract, with the possibility of up to two (2) one (1) year extensions, renewable on an annual basis at the City's sole discretion based on the contractor's performance. The contract will be re -bid no less than every six (6) years. Additional facilities may be added to the contract. Copies of this request for proposal may be obtained in person at the Administration office of the General Services Department located at 592 Superior Avenue, Newport Beach. Please do not mail any correspondence to the Superior Avenue address as it is not a valid mailing address. SCHEDULE of EVENTS from ISSUANCE of the RFP to AWARD of CONTRACT Mailing Date Proposal Due Award of Contract Contractor In -Place V. CITY POINT OF CONTACT Wednesday, August 27, 2008 Wednesday, September 17, 2008 by I 1 a.m. Tuesday, October 14, 2008 Saturday, November 1, 2008 The sole source of contact regarding this RFP is Mike Pisani, General Services Deputy Director, (949) 644-3059. Individuals or firms interested in submitting a proposal are asked not to contact other members of the City of Newport Beach staff in connection with the RFP prior to the announcement of the selected contractor. All written inquires related to this RFP are to be submitted in a sealed envelope to the City Corporation Yard Building A located at 592 Superior Avenue, Newport Beach. Inquiries should be labeled: CONFIDENTIAL (INQUIRY REGARDING PROPOSAL FOR CITY FACILITIES REFUSE REMOVAL) VI. CITY OF NEWPORT BEACH BUSINESS LICENSE The Contractor must possess and maintain in effect a valid City of Newport Beach Commercial Solid Waste Franchise Agreement and Business License prior to commencement of work and during the entire time that work is being performed under the contract. Questions regarding a commercial solid waste franchise agreement should be addressed to the Andrea Riles, Management Assistant (949) 644-3064. VII. PROFESSIONAL LICENSES, PERMITS, ETC. Contractor represents and warrants to the City that he/she has, and will keep in effect at all times during the term of a contract with the City, all licenses, permits, professional qualifications, and approvals of whatever nature that are legally required to practice his/her trade. Vehicles and equipment must meet all current federal, State, and AQMD regulations. VIII. PROPOSAL CLOSING DATE Contractor must submit one (1) original and two (2) complete copies of the proposal (copies must be marked "COPY"). All proposals must be delivered to the City Corporation Yard Building A located at 592 Superior Avenue, Newport Beach no later than 11:00 AM on Wednesday, September 17, 2008. Proposals should be labeled: CONFIDENTIAL (PROPOSAL FOR CITY FACILITIES REFUSE REMOVAL) Proposals will become a part of the official files of the City of Newport Beach and will not be returned. IX. INSTRUCTIONS AND CONDITIONS See Attachment A X. DESCRIPTION OF PROJECT AND INTENT (Scope of Work) See Attachment B XI. DELIVERABLES The Contractor is responsible for the following deliverables in keeping with the schedule described in subsection below: a. Proposal in the format and content explained in Section II of Attachment A. b. Completed Proposal Form (Attachment D) containing total weekly collection costs for each location and the total weekly cost for all locations. 3 XII. ATTACHMENTS Attachment A: Instructions and Conditions................................................................................ 5 Attachment B: Description of Project Intent (Scope of Work) ................................................. 13 Attachment C: Detailed Map.................................................................................................... 17 Attachment D: Proposal Form.................................................................................................. 18 Attachment E: Statement of Compliance.................................................................................. 19 Attachment F: Draft Agreement............................................................................................... 20 a CITY OF NEWPORT BEACH Request for Proposal City Facilities Refuse Removal Attachment A: Instructions and Conditions The following instructions and conditions apply to this RFP: 1. GENERAL CONDITIONS Pre -Contractual Expenses Pre -contractual expenses are defined as expenses incurred by Contractor in: 1. Preparing a proposal in response to this RFP. 2. Submitting that proposal to the City of Newport Beach. 3. Negotiating with the City of Newport Beach any matter related to this RFP, proposal, and/or contractual agreement. 4. Any other expenses incurred by the Contractor prior to the date of an executed contract. The City of Newport Beach shall not, in any event, be liable for any pre -contractual expenses incurred by any Contractor. In addition, no proposal shall include any such expenses as part of the price proposed to perform the City Facilities Refuse Removal services as described in this RFP. Authority to Withdraw RFP and/or Not Award Contract The City of Newport Beach reserves the right to withdraw this RFP at any time without prior notice. Further, the City makes no representations that any agreement will be awarded to any Contractor responding to the RFP. The City expressly reserves the right to postpone the opening of proposals for its own convenience and to reject any and all proposals in response to this RFP without indicating any reasons for such rejection(s). The City also reserves the right to negotiate with the successful bidder concerning various alternatives. Pricing Approach The City of Newport Beach intends to award a contract based on a fixed annual contract price for the four (4) -year term of this contract, renewable annually for two (2) one (1) year extensions based on performance at the City's sole discretion. Upon the first anniversary of the Commencement Date of the Contract and upon each anniversary of the Commencement Date thereafter, the Contract Amount shall be adjusted in proportion to the changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Contract Amount by a fraction, the numerator of which is the value of the 5 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, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. 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 including in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. Right to Reject Proposals The City of Newport Beach reserves the right to reject any or all proposals submitted. Any award made for this engagement will be made to the Contractor, which, in the opinion of the City, is best qualified to execute the contract. Proposal Evaluation Criteria Proposals will be evaluated on the basis of the response to all provisions of this RFP. The City of Newport Beach may use some or all of the following criteria in its evaluation and comparison of proposals submitted. The criteria listed are not necessarily an all- inclusive list. The order in which they appear is not intended to indicate their relative importance: 1. The Contractor's demonstrated awareness of safety in all operations. 2. The Contractor's responsiveness to the requirements of the contract as set forth in the RFP. 3. A demonstrated understanding of the Contractor's work plan and other proposal documents. 4. A logical, proven methodology for carrying out the work tasks described in the proposal and developing contract deliverables. 5. The Contractor's recent experience in conducting contracts of similar scope, complexity, and magnitude, particularly for government agencies. 6. The quality and quantity of equipment to be assigned to the contract. 7. Recent references from local clients with particular emphasis on local government. 8. The proposed contract schedule. 9. The proposed contract costs. Compliance With Applicable Laws The Contractor shall have in his/her possession and be familiar with all safety regulations issued by the State Division of Industrial Safety and shall comply with these and all other applicable laws, ordinances, and regulations governing Affirmative Action programs. The Contractor shall provide all safeguards and protective devices and take any other action necessary to protect the health and safety of their employees on the job, safety of City employees and the public in connection with the performance of the work required by this contract. All Services rendered hereunder by Contractor shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local government agency having jurisdiction in effect at the time service is rendered. Suspension and/or Cancellation of Contract If the event the Contractor fails or refuses to timely perform in accordance with the agreement or if Contractor violates any provisions of the agreement, the Contractor shall be deemed in default. If such default is not cured within a period of five (5) working days, or if more than five (5) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within five (5) working days after Contractor receives written notice of default from City, City may terminate the agreement forthwith by giving written notice. City may, in addition to the other remedies provided in the Agreement or authorized by law, terminate the Agreement by giving written notice of termination. In addition, the City reserves the right to terminate the agreement without cause upon thirty (30) days written notice. Upon termination, City will pay to Contractor that portion of compensation specified in the agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the agreement in the event of nonpayment by the City. Familiarity with Work By executing this Agreement, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. Contractor warrants that Contractor has investigated the site and is fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the City. 7 City and Contractor agree that City has made no representation regarding the order or condition of any area or location for which Contractor is to provide services or that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of this Agreement. Assignment of Contract The Contractor shall not assign this contract without the written consent of the City. Workmanship and Supervision 1. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. 2. Work shall be performed by competent and experienced workers. 3. All personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Director. All personnel shall wear identification badges or patches, and employees working adjacent to traffic lanes must wear safety vests. 4. Persons employed by the Contractor who are found not to be satisfactory by the City shall be discharged or reassigned by the Contractor on fifteen (15) days notice from the City. Equipment All vehicles and equipment used in conjunction with the work shall be maintained in a neat, clean, and orderly manner and shall be in good working order. The General Services Director, or his authorized agent, may reject any vehicle or piece of equipment and order it removed from the service area(s). Vehicles and equipment must meet all current federal, State, and AQMD regulations. Safety Requirement 1. All work performed under this contract shall be performed in such a manner as to provide maximum safety to the public and where applicable, comply with all safety standards required by CAL -OSHA. The Director reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this contract. All contractor vehicles shall have a "W.A.T.C.H." work area traffic control manual at all times. 2. The Contractor shall maintain all service areas free of hazards to persons and/or property resulting from his/her operations. Any hazardous condition noted by the Contractor, which is not a result of his/her operations, shall be immediately reported to the Director. 8 Claims by Contractor's Employees 1. The Contractor shall hold harmless the City and all of its agents, employees, and officers from any and all damages or claims, of any kind or nature that may be made or may arise directly or indirectly for the performance of duties by the Contractor. 2. Contractor shall not permit access into any City of Newport Beach or other private structures by any unauthorized persons. Liability for Damages 1. The Contractor shall be fully responsible for any and all damage done to City property, equipment, or other property of the public premises that result from the Contractor's operations under this contract. 2. The Contractor may insure the equipment, materials, and work to cover Contractor's interest in the same. The City will not, under any circumstances, be answerable or accountable for any loss or damage that may happen to said equipment, materials and work, or any part or parts thereof, used and employed in fully completing the contract. 3. Contractor shall indemnify and hold harmless the City, its City Council, boards, commissions, officers, agents, servants and employees from and against any and all claims and losses whatsoever, including reasonable attorney's fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies in connection with the services, work or activities conducted or performed by Contractor pursuant to the Agreement. Advertising No advertising of any kind or description, bill posters, printed, painted, or by the use of any other method application legible to human sight, shall appear on any equipment, buildings, structures, fences, canopies, posts, or signs except valid and authorized legal notices required to be placed thereon and except as may he specifically authorized in these general conditions. II. PROPOSAL FORMAT AND CONTENT Proposals should be typed as briefly as possible. They should not include any elaborate or unnecessary promotional material. The following order and content of proposal sections should be adhered to by each Contractor: A. Cover Letter A cover letter not to exceed three (3) pages in length should summarize key elements of the proposals. The letter must be signed by an individual authorized to bind the Contractor. The letter must stipulate that the proposed price will be valid for a period of a minimum of six (6) years. Indicate the address and telephone number of the Contractor's 91 office located nearest to Newport Beach, California, and the office from which the contract will be managed. B. Background and Approach The Background and Approach Section should describe the proposing firms understanding of the City and the work to be done. C. Methodology This section should clearly describe the methodology to be used to cavy out the specific work tasks described in the Work Plan, including descriptions of the type(s) of equipment to be utilized in the City. D. Work Plan Describe the sequential work tasks you plan to carry out in accomplishing this contract. Indicate all key deliverables and their contents. Fully describe how your company will meet the required diversion rate. Include the name and address of the facility where the recyclable material will be delivered and sorted, as well as the type of permits for the facility. State the permitted daily total tonnage allowed at the facility and the current tonnage of materials received. E. Contract Organization and Staffmg Describe your approach and methods for managing the contract. Provide an organization chart showing all proposed contract team members. Describe the responsibilities of each person on the contract team. Identify the Contract Director and/or Manager and the person who will be the key contact with the City of Newport Beach. Also include any additional information or staff support required from City personnel during the course of the RFP preparation. F. Related Experience Describe recent, directly related public agency experience. Include on each listing the name of the agency; description of the work done; primary agency contact, address and telephone number; dates for the contract; name of the Contract Director and/or Manager and members of the proposed contract team who worked on the contract, as well as their respective responsibilities. At least three references should be included. For each reference, indicate the reference's name, organization affiliation, title, complete mailing address, and telephone number. The City of Newport Beach reserves the right to contact any of the organizations or individuals listed. G. Equipment Safety Records Include copies of all equipment safety inspections, BIT inspections, and CHP incident reports, records, and/or citations since January 1, 2007. H. Contract Schedule 10 Provide a schedule for collection each of the contract areas, based upon the attached map (Attachment C) and Proposal Form (Attachment D). I. Cost Data Indicate the total weekly cost and the total annual cost using the Proposal Form (Attachment D) for which you will conduct the contract based upon the information provided. J. Statement of Compliance Contractors must submit a Statement of Compliance (Attachment E) with all parts of the Request for Proposal and Draft Agreement (Attachment F) terms and conditions, or a listing of exceptions and suggested changes, along with a description of any cost implications or schedule changes the exceptions and/or changes cause. The Statement of Compliance must declare either: 1. This proposal is in strict compliance with the Request for Proposal and Draft Agreement and no exceptions to either are proposed; or 2. This proposal is in strict compliance with the Request for Proposal and Draft Agreement except for the items listed. For each exception and/or suggested change, the Contractor must include: a. The suggested change in the RFP or rewording of the contractual obligations. b. Reasons for submitting the proposed exception or change. c. Any impact the change or exception may have on contract costs, scheduling, or other considerations. Please be advised that the City's indemnity and insurance obligations are non- negotiable. K. Other Information Include any other information you consider to be relevant to the proposal. Additional optional services may be provided at the discretion of the Contractor. L. Employment Provision Contractor agrees that in carrying out its responsibilities under this agreement, and in particular with regard to the employment of persons and sub -contractors working on the contract, it will not discriminate on the basis of race, color, creed, national origin, religion, sex, age, or handicap. In the event any of the work performed by Contractor here under is subcontracted to another person or firm (with approval of the City as required herein), sub- contract shall contain a similar provision. M. Insurance Coverage 11 On or before the commencement of the term of the Agreement, Contractor shall furnish the City with certification showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 1, 2, and 3 below. Such certificates, which do not limit the Contractor's indemnification, shall also contain substantially the following: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer afforded coverage shall provide thirty (30) days advance notice to the City of Newport Beach by certified mail." 1. Coverage a. Commercial General Liability: $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. Coverage shall include third party liability risks, including without limitation, contractual liability. The aggregate limit shall not be less than $4,000,000. b. Worker's Compensation: Statutory coverage as required by the State of California. However, in no event shall the Employer's Liability Insurance be less than $1,000,000 per occurrence. c. Commercial Auto Liability and Property Insurance: $2,000,000 combined single limit per accident for bodily injury and property damage. 2. Please refer to Section 8 (Insurance) of Draft Agreement (Attachment F) for Rather insurance requirements. N. Guarantees A Faithful Performance Warranty Bond in the amount of fifty percent (50%) of the annual contract price shall be required for the entire duration of the contract period. Unless otherwise specified, the Contractor shall guarantee that the work performed under the Contract will be performed to the HIGHEST INDUSTRY STANDARDS specified in the RFP and remain as such for the term of the contract. Whenever, in these specifications, written guarantees are requested, or specified, the Contractor shall guarantee the products or installations therein described for the time specified and no fiarther guarantee shall be required. If defective material or workmanship is discovered by the City in the work proposed within the contract, and this defective material or workmanship requires repairs to be made under this guarantee, all such repair work shall be done by and at the expense of the Contractor. Should the Contractor fail to repair such damage within five (5) working days thereafter, the City may be the necessary repairs and charge the Contractor with the immediate attention, the City shall have the right to repair the defect or damage and charge the Contractor with the actual cost of all labor and material required. 12 CITY OF NEWPORT BEACH Request for Proposal City Facilities Refuse Removal Attachment B: Description of Project Intent (Scope of Work) I. INTENT The intent of these specifications is to provide commercial refuse collection from eighteen (18) City Facility locations throughout the City of Newport Beach on a weekly or more frequent basis. II. DESCRIPTION OF PROJECT (SCOPE OF WORK) Furnish all labor, equipment, materials, and supervision to perform collection as described herein including, but not limited to, the following: A. Collect commercial refuse from designated bins at City facilities on a regularly scheduled basis. B. Clean designated bins at City facilities on a regularly scheduled basis. C. Remove/repair designated bins at City facilities within 24 hours of notice. QI. WORKING HOURS Normal working hours shall be within an eight-hour day between the hours of 7:00 AM and 3:00 PM, Monday through Friday and between 7:00 AM and 11:00AM, Saturday and Sunday unless otherwise designated. No motorized equipment shall be operated before 7:00 AM nor after 3:00 PM. IV. TERM OF CONTRACT Unless earlier terminated in accordance with Section 20 of this Agreement, the Term of this Agreement shall be for a period of four (4) years. The term shall commence on November 1, 2008, after City Council approval of this contract, and upon receipt and approval of all required bonds and insurance. The term of the Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate the Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under the Agreement. V. LEVEL OF COLLECTION All work shall be performed in accordance with the HIGHEST INDUSTRY STANDARDS, as stated in the enclosed specification description. Standards and frequencies may be modified from time to time as deemed necessary by the City for the proper collection at the sites. 13 If, in the judgment of the City, the level of refuse collection is less than that specified herein, the City shall, at its option, in addition to or in lieu of other remedies provided herein, withhold appropriate payment from the Contractor until services are rendered in accordance with specifications set forth within this document and providing no other arrangements have been made between the Contractor and the City. Failure to notify of a change and/or failure to perform an item or work on a scheduled day may, at the City's sole discretion, result in deduction of payment for that date, week, or month. Payment will be retained for work not performed until such time as the work is performed to City standard. The Contractor is required to correct deficiencies within the time specified by the City. If noted deficient work has not been completed, payment for subject deficiency shall be withheld for current billing period and shall continue to be withheld until deficiency is corrected, without right to retroactive payments. VI. SUPERVISION OF CONTRACT Any specific problem area which does not meet the conditions of the specifications set forth herein shall be called to the attention of the Contractor and if not corrected, payment to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. VII. SPECIFICATIONS This Scope of Work is intended to cover all labor, material and standards of workmanship to be employed in the work called for in this RFP or reasonably implied by terms of same. Work or materials of a minor nature which may not be specifically mentioned, but which may be reasonably assumed as necessary for the completion of this work, shall be performed by the Contractor as if described in the specifications. VIlI. CORRESPONDENCE IX. All correspondence shall be addressed to Mike Pisani, Deputy Director, General Services Department, City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California 92663-3884. A. Contractor shall comply with all recycling and diversion requirements imposed by law, ordinance, or regulation on the City and/or Contractor. On a quarterly basis Contractor shall divert solid waste from landfill disposal as follows: Year 1 (beginning March 1, 2008): fifty percent (50%); Year 2 (beginning March 1, 2009): fifty-one percent (51%); Year 3 (beginning March 1, 2010): fifty-two percent (52%); Year 4 (beginning March 1, 2011): fifty-three percent (53%); Year 5 (beginning March 1, 2012): fifty- four percent (54%); Year 6 (beginning March 1, 2013): fifty-five percent (55%). In no event shall Contractor deposit more solid waste at any landfill during any calendar quarter than the required diversion rate mandated by the City. In the event new or additional diversion requirements are imposed by law, ordinance or regulation on City and/or Contractor, the City shall have the right to require Contractor to divert additional 14 solid waste from landfills by providing Contractor with ten (10) days written notice of the new diversion requirements. Upon request of the General Services Director, Contractor shall provide all documents and information requested by the General Services Director to prove that Contractor has complied with this requirement, any applicable law, ordinance, regulation, or condition related to recycling and diversion of solid waste. B. Contractor shall dispose of solid waste collected or transported by Contractor only by taking such solid waste to a Orange County certified/licensed landfill, State certified/licensed transfer station, State certified/licensed recycling facility or State certified/licensed materials recovery facility which is lawfully authorized to accept that specific type of solid waste material. Contractor shall not dispose of solid waste by depositing it on any land, (except a permitted facility) whether public or private, or in any river, stream or other waterway, or in any sanitary sewer or storm drainage system. Nothing in the Agreement shall be deemed or construed as authorizing Contractor to operate a landfill, recycling center, or other solid waste disposal facility. C. If Contractor violates the terms above, Contractor agrees that the City has the future right to direct that solid waste be delivered to a permitted disposal facility designated by City. This exercise of "flow control" by the City shall be made upon at least 30 days prior written notice to Contractor, and written notice shall include the violation(s) prompting the City's action regarding "flow control." Failure to comply with the recycling/diversion requirements and delivery/disposal of materials in accordance to the designated certified/licensed facility shall be a material breach of the Agreement. D. Contractor shall implement a load check program that includes, at a minimum, a visual check of all containers to be emptied to protect against inclusion of hazardous waste and shall prepare a written record of all hazardous waste discovered during the process. The records shall comply with all State and Federal Hazardous Waste Regulations, shall be maintained for the length of the term of the Agreement, and shall be provided to the City on or before the 15th day of the month following the end of the previous calendar month. E. For work directly performed pursuant to the Agreement, the Contractor shall not be subject to the franchise fee and shall not pay to the City ten and a half percent (10.5%) of the gross receipts for commercial solid waste handling services provided by the Franchisee to the City pursuant to the Agreement. The Contractor shall be subject to the franchise fee and shall pay to the City ten and a half percent (10.5%) of the gross receipts for all commercial solid waste handling services provided by the Franchisee which are not directly performed pursuant to the Agreement. X. RECORDS The Contractor shall keep accurate records concerning all of his/her employees or agents. The Contractor shall provide this information in an organizational chart as changes in staffing occur. Additionally, the Contractor shall provide the City with names and telephone numbers of emergency contact employees. The Contractor shall complete a monthly report indicating work performed and submit this completed report to the Deputy Director. This report should also contain a description of work performed, including man-hours, equipment, and any additional work, which the contractor deems to be beyond the scope of the contract. Under ordinary conditions, 15 XI. payment for this work will not be authorized unless the additional work, and costs thereof, are first approved in writing by the City. The Contractor shall permit the City to inspect and audit its books and records regarding City -provided services only at any reasonable time. The Contractor shall, within fifteen (15) days of the effective date of an executed agreement, prepare and submit a written schedule for refuse collection for each of the contract areas, based upon the attached map (Attachment C) to the Deputy Director This schedule shall clearly identify the collection locations required by this agreement and days they are scheduled to be performed in each particular area. If it is necessity to make periodic revisions to this collections schedule, a modified schedule must be submitted to the Deputy Director for approval prior to the date the changes are to take effect. Otherwise, it is intended that the Contractor will develop a permanent schedule, which will allow the City to monitor the Contractor's progress and allow residents to move vehicles, etc., to further ease the collection of refuse. A. Summer Schedule 1. The Contractor shall increase weekly collection frequency by one (1) additional day to 7 -day pick-up at the Washington Street location (210 Washington St) beginning the Sunday preceding Memorial Day through the Sunday preceding Labor Day. Performance on Schedule The Contractor has been provided the maximum latitude in establishing work schedules which correspond to its manpower and equipment resources. The Contractor has also been provided the opportunity and procedure for adjusting those schedules to meet special circumstances. Therefore, all work shall be completed on the day scheduled. Failure to complete work on the day scheduled shall result in a penalty of $50 per bin not collected and exceeding its capacity. Upon notification by the City of a missed collection the Contractor shall make every reasonable effort to complete the work prior to the next scheduled collection. XII. BILLING The Contractor is required to submit individual monthly invoices on a per -location basis. Each applicable City department will be individually responsible for payment. 16 CITY OF NEWPORT BEACH Request for Proposal City Facilities Refuse Removal Attachment C. Detailed Map 17 CITY OF NEWPORT BEACH Request for Proposal City Facilities Refuse Removal Attachment D: Proposal Form Weekly Location # of Bins Bin Size Frequency & Weekly Cost Days Balboa Yacht Basin 829 Harbor Island Dr 7 3 -yd 3x TBD $ Central Library 1000 Avocado Ave 2 3 -yd 2x TBD $ City Hall 3300 Newport Blvd I 3 -yd 5x M -F $ Fire Station #2 475 32nd St I 3 -yd 2x TBD $ Fire Station #3 868 Santa Barbara 1 3 -yd 2x TBD $ Fire Station #5 410 Marigold Ave 1 3 -yd 1 x TSD $ Fire Station #6 1348 Irvine Ave 1 3 -yd lx TBD $ Fire Station #7 20401 Acacia St 1 3 -yd 2x TBD $ Fire Station #8 6502 Ridge Park Rd I 3 -yd lx TBD $ Lawn Bowling Center 1550 Crown Dr 1 3 -yd lx TBD $ Lincoln Elementary 3101 Pacific View 1 3 -yd lx TBD $ Marina Park 1770 W Balboa Blvd 1 3 -yd lx TBD $ Community Center 6401 San Joaquin Hills Rd 1 3 -yd 2x TBD $ Oasis Senior Center 800 Marguerite Ave 1 3 -yd 3x TBD $ Oil Tank Farm 5900 W Coast Highway 1 3 -yd lx TBD $ Police Station 870 Santa Barbara 1 3 -yd 6x M-Sa $ Utilities Yard 949 W 16th St 3 3 -yd lx TBD $ Washington St (37 weeks) 210 Washington St 6 4 -yd 6x M-Sa $ Washington St (15 weeks) 210 Washington St 6 4 -yd 7x M -Su $ Total Annual Cost (52 weeks) Signature/ Title 18 Date S CITY OF NEWPORT BEACH Request for Proposal City Facilities Refuse Removal Attachment E. Statement of Compliance Each proposal must be accompanied by a signed Statement of Compliance. The Contractor must sign one of the declarations stated below. I. The person signing below declares that the proposal submitted by (Name of Firm) to perform City Facilities Refuse Removal as described in the RFP dated 2008 was prepared in strict compliance with the instructions, conditions, and terms of the RFP, the Scope of Work, and Draft Agreement. Signature Printed Name and Title Date U. By signing below, the Contractor states that the proposal submitted by (Name of Firm) has been prepared in consideration of and with exception to some of the terms of the RFP, Scope of Work, and Draft Agreement. The Contractor is advised that exceptions and/or a suggested change to any of the terms of the RFP, the Scope of Work, or Draft Agreement must be submitted in writing as an attachment to the proposal submittal. By signing below, the Contractor declares that the proposal includes a statement that identifies each item to which the Contractor is taking exception or is recommending change, includes the suggested rewording of the contractual obligations or suggested change in the RFP, identifies the reasons for submitting the proposed exception or change, as well as, any impact the change or exception may have on contract costs, scheduling, or other considerations. The City reserves the right to reject any declarations that are not accompanied with the required documentation as described above. Signature Date Printed Name and Title 19 CITY OF NEWPORT BEACH Request for Proposal City Facilities Refuse Removal Attachment F. Draft Agreement CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this day of of 2008, by and between the City of Newport Beach, a Municipal Corporation and Charter City ("City"), and, a , located at ("Contractor"), and is made with reference to the following Recitals: RECITALS WHEREAS, the City desires to obtain contract services for the collection of commercial refuse from eighteen (18) citywide locations. WHEREAS, on August 27, 2008 a Request for Proposals ("RFP") requesting proposals for the collection of commercial refuse was mailed to firms who are currently refuse Contractors franchised by the City. WHEREAS, the Contractor submitted the lowest bid among the firms which responded to the RFP ("Contractors Proposal'). WHEREAS, the Contractor desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by the Agreement and in accordance with the terms and conditions of the Agreement. WHEREAS, The Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in the Agreement NOW, THEREFORE, the Parties agree as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of the Agreement, the Term of this Agreement shall be for a period of four (4) years. The term shall commence on November 1, 2008, after City Council approval of this Agreement, and upon receipt and approval of all required bonds and insurance. The term of the Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to 20 terminate the Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under the Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Contract Services") as described in the RFP and the Contractor's proposal. The RFP and Contractor's Proposal are attached hereto as Exhibit A and incorporated by this reference. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of refuse collection as necessary to ensure highest industry standards. 3. WORKMANSHIP. SUPERVISION, AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. B. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. C. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. D. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Director when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. E. All work shall be performed in accordance with the highest collection standards. F. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor. G. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of the Agreement. 4. COMPENSATION TO CONTRACTOR 21 City shall pay Contractor a sum of $ per year for all work and services to be Performed under this Agreement on a monthly basis as provided herein and in Exhibit A ("Contract Amount"). Contractor shall submit invoices to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, fust class postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices". A. Contractor shall submit individual monthly invoices to the applicable City department on a per -location basis describing the work performed the preceding month. B. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit B. C. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount by the City as set forth above and in Exhibit A and the unit prices set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 4.0% 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, 2008, the index to be used for the numerator is the index for the month of March 2008 and the index to be used for the denominator is March 2007. 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 4.0% of the Rate in effect immediately preceding such adjustment. 22 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. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or 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. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. 23 A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all rimes during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. i. Workers' Compensation Coveraee. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coveraee. 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 two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. 24 ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional 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. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT 10. A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 25 A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly collection report indicating work performed and submit this completed report to the City Administrator within (S) days after the end of each month. A phone log will be submitted with monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit B. B. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is 26 withdrawn for a period of less than a full four (4) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. 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 notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. 27 B. 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 termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658-8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: 20. TERMINATION/DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of 28 undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion, of Contractor's compensation for contract services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate refuse collection standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 21. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 22. WAIVER A waiver by City 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. 23. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 24. 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. 25. 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. 26. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 27. INTERPRETATION 29 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. 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. 30 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: LaVonne Harkless, City Clerk APPROVED AS TO FORM: Aaron Harp, Assistant City Attorney Exhibit A: RFP and Contractor's Proposal Exhibit B: Schedule of Unit Prices 31 CITY OF NEWPORT BEACH A Municipal Corporation M Ed Selich, Mayor CONTRACTOR 0 Title: M Title: �r `✓, ARCH INSURANCE COMPANY PREMIUM BASED ON FINAL CONTRACT PRICE Bond Number : SU 5025573 Premium: $639.001 YR PUBLIC WORKS PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That we, Ware Disposal. Co., Inc. as Principal, and Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, authorized to transact Surety business in the State of California as Surety are held and firmly bound unto The City of Newport Beach, as Obligee, in the sum of Fifteen Thousand Nine Hundred Seventy Five and 00/100 DOLLARS ($15,975.00) lawful money of the United States of America, for the payment whereof; well and tiny to be made, we hereby bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the above bounden Principal has been awarded and has entered into a contract dated 10/14/08 with said Obligee to do and perform the following work, to wit: CitvFacilities Refuse Removal 11/01/08 -10/31/09 and will more fully appear in contract, reference to which is hereby made. NOW, 'THEREFORE THE CONDITION OF THIS OBLIGATION IS SUCH, That, if the above bounden Principal shall well and truly perform, or cause to be performed, each and all of the requirements and obligations of said contract this bond shall be null and void, otherwise it shall remain in full force and eff zt. This Bond can be renewed on an annual basis with consent of the Surety. SIGNED, SEALED, DATED: October 16, 2008 Ware Disposal Co., Inc. I/ Arch Insurance Company (Principal) (S=ty) By: By: Z - dliam I Shupper, Anomey In Fact DIRECT CORRESPONDENCE TO: Arch ContradOra S Developers Group, 135 N. Los Robles Ave., Ste. 625, Pasadena, CA 91 101 PHONE (626) 535-0655 • FA% (626) 535-0875 CALIFORNIA••ACKNOWLEDGMENT K el' `e3:�".•/C ei' `S � u:`.y`:92VYi'".fi5�:9C:Vd��.'iL`Y:C.6ZCz?i\ 35\-'i:9,�'Y .�?': y:\e y:ES �3:L4v�:<�6LYri'-3.4CeIG✓C'✓C?%i�'Y `.NS\✓:L6,'>n'Je➢"n2%r. STATE OF CALIFORNIA + County of San Bernardino On T f b L008 before me, Stacia C. Baker. Notary Public Dare Hem Innen Namea.d amorev r personally appeared William J. Shupper Names) of Slgneq.) STACIA C. BAKER Commisslon # 1776737 Notary Public - California San Bernardino County Comm, Cct29,2DII who proved to me on the basis of satisfactory evidence to be the person(e) whose name(e) islaw subscribed to the within instrument and acknowledged to me that heitsha& y executed the same in hislberANeir authorized capacity@@, and that by hislbeW#iak signature(s) on the instrument the person(e), or the entity upon behalf of which the person(e) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my ha�(ggc/j and offici as Signature Q`ty/4lt%/n �V Pkw Notary seal Above Signature of Wofuy Pulft OPTIONAL Though the Information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capecity(fes) Claimed by Signer(s) Signers Name: ❑ Individual ❑ Corporate Officer—Title(s): ❑ Panner— ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s)' ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fad ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: "S' "✓2'}3t..�."r3:.s�s�-✓:4v:\-✓...v"��..yC',3:"��C�:V4�:,.6,�y ..�, .wry:'"vS�e'•.J.:\✓4'yn:3t"Y:U:T-✓_,S.,J�..N�..SS,.y..."N:�✓:�3�'y^�". POWER OF ATTORNEY Know All Men By These Presents: That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its principal office in Kansas City, Missouri (hereinafter referred to as the "Company") does hereby appoint Raymond E. Gail and William J. Shupper of Rancho Cucamonga, CA (EACH) its true and lawful Attomey(s}in-Fact, to make, execute, seal, and deliver from the date of Issuance of this power for and on its behalf as surety, and as its act and deed: Any and aff bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver fonds or undertakings that guarantee the payment or collection of any promissory note, check, draft or letter of credit. This authority does not permit the same obligation to be split into two or more fronds in order fo bring each such bond within the dollar limit of authority as set forth. herein. The Company may revoke this appointment at anytime The execution of such bonds and undertakings in pursuance of these. presents shag be as binding upon the said Company as fully and amply to all intents and purposes, as if the same had been duty executed and acknowledged by Its regularly elected officers at Its principal office in Kansas City, Missouri. This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by the undersigned Secretary as being In full force and effect: "VOTED, That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary, or the Secretary shall have the power and authority to appoint agents and attorneys -In -fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings, obligatory in the nature thereof, and any such officers of the Company may appoint agents for acceptance of process." This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution adopted by the unanimous consent of the Board of Directors of the Company on March 3, 2003: VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees designated In writing and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and certifications by'the Secretary, may be affixed by facsimie on any power of attorney or bond executed pursuant to the resolution adopted by the Board of Directors on Mardi 3, 2003, and any such power so executed, sealed and certified with respect to any bond or undertaking to which it Is attached, shall continue to be valid and binding upon the Company. OOML0013 00 03 03 Page 1 of 2 Printed in U.S.A. In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their authorized officers, this 1 st day of May 2008 . Arch Insurance Company Attested and Certified ce ooaoiun ,cu im T Itaoud A..nNil , Secretary STATE OF PENNSYLVANIA SS COUNTY OF PHILADELPHIA SS 1, Brien C. Kuhn, a Notary Public, do hereby certify that Martin J. Nilsen and J. Michael Pete personally known to me to be the same peraons whose names dre respectively as Secre[aiy and Vice President of the Arch Insurance Company; a Corporation organized and existing under the laws of the State of Missouri, subscribed to the foregoing instrument appeared before me this day in person and severally acknowledged that they being thersunto duly authorized signed, sealed with the corporate seal and delivered the said Instrument as the free and voluntary act of said corporation and as their own free and voluntary acts for the uses and purposes therein set Dxth 00NM0NWNAL1H0P MA `___�J Brian Knim, Nasty Public Brian C. Kuhn; Notary Public �-- 01OfPhilmicipMa.I' ledelphaCwmy My commission expires 12-06-2011 CERTIFICATION I My commiuioa LVIrmDcamba06,2011 I, Martin J. Nilsen, Secretary of the Arch Insurance Company; do hereby certify that the attached Power of Attorney dated May 1, 2008 on behalf of the persbn(s) as listed above Is a true and correct copy and that the some has been in full force and effect since the date thereof and is in full force and effect on the date of this certificate; and I do further certify that the said J. Michael Pete, who executed the Power of Attorney as Vice President, was on the date of execution of the attached Power of Attorney the duly elected Vice President of the Arch Insurance Company. IN TESTIMONY WHEREOF, I hpav�C ereugto subscribed my name and 8714 the corpo s 1 of the Arch Insurance Company on this day of U 1. %OCH 20; Martin J. NI 011 Secretary This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein and they have no authority to bind the Company except in the manner and to the extent herein stated. PLEASE SEND ALL CLAIM INQUIRIES RELATING TO THIS BOND TO THE FOLLOWING ADDRESS, Arch Contractors & Developers Group 135 N. Robles Ave., Ste. 825 Pasadena, CA 91101 OOML0013 00 03 03 Page 2 of 2 Printed In U.S.A. OCT 14 2008 • • c-113 110C-100%) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 13 October 14, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, 949-644-3055 mharmon@city.newport-beach.ca.us SUBJECT: Professional Service Agreement With Ware Disposal, Inc. For City Facilities Refuse Removal Services ISSUES: Should the City execute a Professional Services Agreement with Ware Disposal, Inc. of Santa Ana, CA for City Facilities Refuse Removal services? 1. Approve the agreement with Ware Disposal, Inc. for City Facilities Refuse Removal services on a regularly scheduled basis. DISCUSSION: Currently the City has an agreement with CR&R for $44,544.66 per year to remove commercial refuse at 18 locations at least once per week and, at selected locations on a more frequent basis, up to seven days per week. The locations serviced include: Balboa Yacht Basin, Central Library, City Hall, Fire Stations, Lincoln Elementary, Marina Park, Newport Coast Community Center, Oasis Senior Center, Oil Tank Farm, Police Station, Utilities Yard, and Washington Street businesses. Each operating department funds the collection at their own facilities, with the General Services Department funding collection at City Hall and the Washington Street businesses. On.August 27th, a Request for Proposal was mailed to the list of franchised haulers on file with the General Services Department. Seven vendors from Orange and Los Angeles counties submitted proposals by the September 17th deadline. Based on missing information the Green Environmental Waste & Recycling proposal was deemed non- responsive. A summary of the proposed prices is attached, with the lowest proposed price furnished by Ware Disposal, Inc. at an annual cost of $31,950.00. • Agreement with Ware Disposal, Inc. for City Facilities Refuse Removal Services October 14, 2008 Page 2 Ware Disposal, Inc. has proposed a plan to process the material through the combined use of sorting at the Madison Materials solid waste facility and dumping of putrescible waste directly at the County of Orange Bowerman Landfill. Ware has also proposed to supply source -separated recycling bins at various locations. Staff will be coordinating this recycling effort on a per -site basis after the agreement is executed. Ware Disposal, Inc. has also made a commitment to utilizing CNG vehicles for the duration of the contract, which would likely be refueled at the forthcoming City Corporation Yard CNG station. Over the next year the Ware Disposal, Inc. fleet will be an average of approximately 2 years -old and consist of a total of 32 CNG vehicles. Therefore, an agreement with Ware Disposal, Inc. is submitted for Council approval. The term of the agreement is for four (4) years and shall be extended for two (2) additional one (1) year terms upon agreement of both parties. This agreement includes an annual rate adjustment based in proportion to changes in the Consumer Price Index to a maximum of 4.0% after each 12 month period. With the rate adjustment taken into consideration, Ware Disposal, Inc. represents the best value for the City's City Facilities Refuse Removal service needs, representing an annual savings of $12,594.66 compared to the current service at the original proposed 18 locations. FUNDING: There are adequate funds in various department budgets to fund these services this fiscal year, and funds for these services will continue to be budgeted in subsequent fiscal years. Individual departments and agencies will be invoiced on a monthly basis. ENVIRONMENTAL REVIEW: This action requires no environmental review, as it is not a project pursuant to CEQA. LEGAL REVIEW: The City Attorney's Office has reviewed this report and the attached agreement. Prepared by:/ Mau nice Turrier Administrative Analyst Submitted General Services Director Attachments: (1) Summary of City Facilities Refuse Removal Proposals (2) Professional Services Agreement with Ware Disposal, Inc. for City Facilities Refuse Removal Services • Oreement with Ware Disposal, Inc. for City Facilities Refuse Removal Services October 14, 2008 Page 3 ATTACHMENT 1 Summary of City Facilities Refuse Removal Proposals Current $44,544.66 $12,594.66 Ware Disposal, Inc. $31,950.00 $0.00 CR&R $48,538.88 $16,588.88 Robert's Waste & Recycling, Inc. $49,218.00 $17,268.00 Key Disposal, Inc. $54,847.76 $22,897.76 Rainbow Disposal $88,751.05 $56,801.05 Waste Management $118,494.82 $86,544.82 $120,000 $100,000 $80,000 $60,000 $40.000 $20,000 $0 6 • Agreement with ware Disposal, Inc. for City Facilities Refuse Removal Services October 14, 2008 Page 4 ATTACHMENT 2 Professional Services Agreement with Ware Disposal, Inc. for City Facilities Refuse Removal Services CITY OF NEWPORT BEACH City Facilities Refuse Removal CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this 14th day of October of 2008, by and between the City of Newport Beach, a Municipal Corporation and Charter City ("City"), and, Ware Disposal, Inc, a Corporation located at 1035 East Fourth St, Santa Ana, CA 92701 ("Contractor"), is made with reference to the following Recitals: RECITALS WHEREAS, the City desires to obtain contract services for the collection of commercial refuse from eighteen (18) city facilities; WHEREAS, on August 27, 2008 a Request for Proposals (RFP) requesting proposals for the collection of commercial refuse from various city facilities was mailed to franchised haulers; WHEREAS, ("Contractor") submitted the lowest bid among the firms which responded to the RFP; WHEREAS, the Contractor desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement; WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, 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, the Parties agree as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the Term of this Agreement shall be for a period of four (4) years. The term shall commence on November 1, 2008, after City Council approval of this Agreement, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the 0 • conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Contract Services") as described in the RFP and the Contractor's proposal. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of refuse collection as necessary to ensure highest industry standards. 3. WORKMANSHIP. SUPERVISION, AND EQUIPMENT A. All work shall be performed in accordance to the highest industry standards of refuse collection. B. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. C. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. D. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Director when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. F. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor. G. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. z 4. COMPENSATION TO CONTRACTOR City shall pay Contractor the sum of $31,950.00 a year for all work and services to be performed under this Agreement on an annual basis as provided herein and in Exhibit A ("Contract Amount"). City shall pay Contractor the unit prices set forth in Exhibit A, which is attached hereto and incorporated herein by this reference, for all work and services to be performed under this Agreement that are in addition to the annual services and which are approved by the City in writing prior to the performance of the work. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. A. Contractor shall submit separate monthly invoices by facility to the City describing the work performed the preceding month. Contractor's bills shall include the total number, the location, and the date of all bins serviced. The City shall pay Contractor based on the percentage of the total work completed. For unit priced work approved by the City in writing that is in addition to the annual work, the City shall pay Contractor based on the Unit Prices contained in Exhibit A. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. B. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit A. C. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount to be paid by the City as set forth above and in Exhibit A and the unit prices set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original amounts 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, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. 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 including in such new index. In no event, however, shall the amount payable under �3 0 • this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. S. 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. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or 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 4 applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 8. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employers Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 0 0 iii. Automobile Liability Coverage. 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 two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insureds as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional 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. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 10. RECORDS/REPORTS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the City Administrator within 10 days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintaincomplete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11.ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered 7 the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional services as requested by the Administrator. Additional services, may be billed in accordance with the unit cost proposed by the Contractor Exhibit A. B. Contractor shall perform additional/emergency services as requested by the Administrator. Contractor must obtain written authorization from the City Administrator prior to the performance of any additional/emergency services. Additional services, may be billed in accordance with the per unit cost proposed by the Contractor in Exhibit A. C. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period of less than a full four (4) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. E • B. 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 notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, Contractor, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project 18.CONFLICTS OF INTEREST A. 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. 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 termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: 7 General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658-8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Ware Disposal, Inc. 1035 East Fourth St, Santa Ana, CA 92701 20. TERMINATION/DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specked in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate cleaning standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 21. COMPLIANCE 10 Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 22. WAIVER A waiver by City 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. 23. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 24. 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. 25. 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. 26. CONTROLLING LAW AND VENUE The laws of the State of California shall govem 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. 27. 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. CONFLICTS OR INCONSISTENCIES 11 In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Faithful Performance Bond in the amount of fifty percent (50%) of the total amount. The Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -Casualty. The Contractor shall deliver, concurrently with execution of this Agreement, the Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 12 • E IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Asst. City Attorney for the City of Newport Beach ATTEST: M LaVonne Harkless, City Clerk Exhibit A — Contract Amount & Unit Price Exhibit B — Performance Bond 13 CITY OF NEWPORT BEACH, A Municipal Corporation By: Edward Selich, Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: M- (Financial Officer) Title: Print Name: E Location Balboa Yacht Basin Central Library City Hall Fire Station #2 Fin; Station #3 Fire Station #5 Fire Station 96 Fire Station #7 Fire Station 98 Lawn Bowling Center Lincoln Elementary Marina Park Community Center Oasis Senior Center Oil Tank Farm Police Station Utilities Yard Washington St (37 weeks) Washington St (15 weeks) Tota! Annual Cost 0 Exhibit A Contract Amount & Unit Price # of Bin Size Bins 829 Harbor Island Dr 7 3 -yd 1000 Avocado Ave 2 3 -yd 3300 Newport Blvd 1 3 -yd 475 32nd St 1 3 -yd 868 Santa Barbara 1 3 -yd 410 Marigold Ave 1 3 -yd 1348 Irvine Ave 1 3 -yd 20401 Acacia St 1 3 -yd 6502 Ridge Park Rd 1 3 -yd 1550 Crown Dr 1 3 -yd 3101 Pacific View 1 3 -yd 1770 W Balboa Blvd 10 3 -yd 6401 San Joaquin Hills Rd 1 3 -yd 800 Marguerite Ave 1 3 -yd 5900 W Coast Highway 1 3 -yd 870 Santa Barbara 1 3 -yd 949 W 16th St 3 3 -yd 210 Washington St 6 4 -yd 210 Washington St 6 4 -yd (52 weeks) Weekly Frequency & Days 3x TBD 3x TBD 5x M -F 2x TBD 2x TBD 1x TBD 1x TBD Zx TBD 1x TBD 1x TBD 1x TBD 1x TBD 2x TBD 3x TBD 1x TBD 6x M-Sa 1x TBD 6x M-Sa 7x M -Su Weekly Cost $106.00 $30.00 $25.00 $15.00 $10.00 $6.00 $6.00 $12.00 $5.00 $5.00 $5.00 $50.00 $10.00 $5.00 $30.00 $15.00 $15.00 $250.00 $300.00 $39,950.00 Unit prices shall be negotiated on a per -location basis as additions or reductions in service are deemed necessary. 14