HomeMy WebLinkAbout12 - On-Call Asphalt Utility RepairsCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
January 22, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Utilities Department
Steve Myrter, Utilities Director
644 -3411 or smyrter (cDcitv.newnort- beach.ca.us
SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS WITH
HARDY & HARPER, INC. AND OLIVER MAHON ASPHALT, INC. FOR
ON -CALL ASPHALT UTILITY REPAIRS
RECOMMENDATION:
Approve Professional Services Agreements with Hardy & Harper, Inc. and Oliver Mahon
Asphalt, Inc. for on -call asphalt utility repairs, and authorize the Mayor and City Clerk to
execute the Agreements.
DISCUSSION:
On -call agreements allow staff to retain specialized services that may be required on an
emergency basis for asphalt concrete street repairs needed after repair of water and
sewer pipeline breaks, as well as after major maintenance is performed. Staff is
recommending approval of an on -call agreement with Hardy & Harper, Inc. and Oliver
Mahon Asphalt, Inc. to provide "as needed" street repair services. Services will be
performed and billed on a time and material basis, based on the rate sheet shown in
Exhibit B. These Agreements will formalize on -call emergency services with both
companies and lock prices through July 31, 2008 and December 31, 2008 respectively.
1) Hardy & Harper, Inc. asphalt concrete paving contractor has provided street
construction and street repair service to the City for over 10 years. Hardy &
Harper's background includes 61 years of service to counties and municipalities,
as well as various public entities. Staff recommends retaining this company to
perform these on -call services.
2) Oliver Mahon Asphalt, Inc. is also a recognized and well - established asphalt
concrete paving contractor. Oliver Mahon Asphalt has over 30 years experience
street repair and construction throughout Southern California. Staff recommends
retaining this company to perform these on -call services.
Asphalt Concrete Street Repairs
- Approval Professional Services Agreements
January 22, 2008
Page 2
Environmental Review:
This action requires no environmental review, as it is not a project pursuant to CEQA.
Funding Availability:
Funding is available in various Maintenance and Operations Water, Wastewater and
General Funds (General Services) accounts. Periodically, a Capital Improvement
Account will be utilized, as necessary, to facilitate project expediency.
Expenditures of more than $30,000 for an individual repair project will require a
separate City Council action in accordance with Policy F -14.
Prepared by:
Cindy Asher, N inistrative Manager
Submitted by:
Stev yrter, Utilltie ector
Attachments: Agreement with Hardy & Harper, Inc.
Agreement with Oliver Mahon Asphalt, Inc.
PROFESSIONAL SERVICES AGREEMENT WITH
HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AGREEMENT is made and entered into as of this 22nd day of January,
2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation
( "City "), and HARDY & HARPER, INC., a California corporation whose address is
13112 East Warner Avenue, Santa Ana, California, 92705 ( "Contractor"), and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has a need for on -call assistance for asphalt paving services in regards to
City infrastructure.
C. City desires to engage Contractor to perform on -call asphalt paving services in
various locations throughout the City.
D. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Contractor for purposes of Project shall be Steve
Kirschner.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31st day of July, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Contractor shall provide "On -Call' asphalt paving services as described in the
Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Contractor shall provide a letter proposal
for services requested by the City (hereinafter referred to as the "Letter
Proposal "). The Letter Proposal shall include the following:
(a) A detailed description of the services to be provided;
(b) The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
(c) The estimated number of hours and cost to complete the services;
(d) The time needed to finish the project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Contractor to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Contractor shall not be responsible for delays due
to causes beyond Contractor's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Contractor's control.
3.2 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to -exceed
basis, in accordance with the provisions of this Section and the Schedule of
Billing rates attached hereto as Exhibit "B" and incorporated herein by reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractor's compensation for services performed in
accordance with this Agreement, including all reimbursable items and
subcontractor fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Utilities Department. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by City Council per Council
Policy F -14.
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4.1 Contractor shall submit monthly invoices to City describing the work
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
costs incurred by Contractor.
A. The actual costs of subcontractors for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with. the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Steve Kirschner to
be its Project Manager. Contractor shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Contractor, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
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6.
7.
8.
Contractor warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
ADMINISTRATION
This Agreement will be administered by
shall be the Project Administrator and
under this Agreement. The Project
representative shall represent City in all
rendered pursuant to this Agreement.
CITY'S RESPONSIBILITIES
the Utilities Department. Steve Myrter
shall have the authority to act for City
Administrator or his /her authorized
matters pertaining to the services to be
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractor's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Contractor will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Contractor and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
STANDARD OF CARE
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession.
Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
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8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. 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 or materials and/or design defects [if the design originated with
Contractor]) or Contractor's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and/or omissions of Contractor,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
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.
10. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term
of this Contract: a Labor and Materials Payment Bond in a form acceptable to
the City Attorney. The Labor and Materials Payment 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 Kev
Rating Guide: Property- Casualtv.
Contractor shall deliver, concurrently with execution of this Agreement, the Labor
and Materials Payment Bond, a certified copy of the "Certificate of Authority" of
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the Insurer or Surety issued by the Insurance Commissioner, which authorizes
the Insurer or Surety to transact surety insurance in the State of California.
11. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
12. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Contractor on the Project.
13. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
14. PROGRESS
Contractor is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the work, activities performed and planned, and any meetings that
have been scheduled or are desired.
15. 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. Cettiticates 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
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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 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.
1. 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. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employers Liability Insurance in accordance with
the laws of the State of California for all of the subcontractors
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) days 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 worts performed
by Contractor for City.
2. 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.
3. Automobile Liabilitv 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 One Million Dollars ($1,000,000) combined single limit for
each occurrence.
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4. Professional Errors and Omissions Insurance. Contractor shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of One Million Dollars
($1,000,000).
D. Endorsements. Each general 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 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) days written notice has been received
by City.
A. 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.
B. 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.
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16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership or joint-venture.
17. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Contractor. Assignments of any or all rights, duties or obligations of the
Contractor under this Agreement will be permitted only with the express written
consent of City. Contractor shall not subcontract any portion of the work to be
performed under this Agreement without the written authorization of City.
18. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed documents
for other projects and any use of incomplete documents without speck written
authorization from Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Contractor prior notice and has received
from Contractor written consent for such changes.
19. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Contractor
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shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Contractor. By acceptance of CADD data, City agrees to indemnify
Contractor for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file for City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Contractor shall defend and indemnify City, its agents, officers,
representatives and employees against liability, including costs, for infringement
of any United States' letters patent, trademark, or copyright infringement,
including costs, contained in Contractor's drawings and specifications provided
under this Agreement.
22. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
23. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute
with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor
shall not discontinue work as a result of such withholding. Contractor shall have
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an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Contractor shall be entitled to receive interest on any
withheld sums at the rate of return that City earned on its investments during the
time period, from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and/or
restoration expense shall be borne by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
26. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this. Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractors violation of this
Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
Steve Myrter
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone: 949 - 644 -3011
Fax: 949 - 646 -5204
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All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Steve Kirschner
Hardy & Harper, Inc.
13112 East Warner Avenue
Santa Ana, CA 92705
Phone: 714 -444 -1851
Fax: 714- 444 -2801
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provision, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days' prior written notice to Contractor. In the event of
termination under this Section, City shall pay Contractor for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Contractor shall conform to applicable City,
county, state and federal laws, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
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31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. 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.
33. 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.
34. 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.
35. 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.
36. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
37. 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.
13
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By: ,C_ ff.."
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
Edward D. Selich
Mayor
for the City of Newport Beach
HARDY & HARPER, INC.:
IN
(Corporate Officer)
Title:
Print Name:
By:
(Financial Officer)
Title:
Print Name:
Attachments: On -Call Professional Services Agreement
Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
14
DEC-19.2007 3:24PM 714 - 444 -2801
& Harper, Inc.
STATE UC Nu*a 215952
1312 EAST WARNER AVENUE
SANFA ANA, CA 92705
1714) 4441051. FAX (714) 444 -2801
December 7, 2007
To Whom It May Cone=
A0. 1546 P. 3
EXHIF "A1°
klardy& Per. c" Engineering &Paving Contractor is proud to acknowledge that the year 2007
is our 61 year of service to The counties and municipalities, as well as various public entities
residing m the greater Southern California area. The frtmmaintains a contractor's license in classes
A, C-8, and C-12. Our Corttxactors Iacense number is 215952.
The oompagy is located at 1312 E. Warner Avenue, Santa Ana, California 92705. For 61 years
Hardy & harper has maintained toP-of -the lme equipment to support the scope of work that is
performed Our mechanics maintain all of our own equipment including trucking in which to
transport material. The firm is also supported byspecialized crews of` patch dumps ". These crews
were developedto act as "total quality", "quicktespomse, self - contained vehicles used to service our
MaMtemcO contracts throughout Southern California. Wehava been where the steel meets the sod
as far as developing and implementing tools to address performance and production with an
emphasis on quality.
Hardy & Harper, Inc„ currently owns several maittenance contracts with response time as a key
issue to the oantract. We take greatpride in servicing our customers as promisedperthe time frames
and dollar amounts quoted. We have been servicing maintenance contracts with various
municipalities for several years and have had no complaints. Please find attached a list ofvarious
maintenance contracts currently held by Handy & Harper Inc.
Through abargaining agreement with doAGCofSouthemCalifomiawe have signe dMasWLabor
Agreements with Construction Laborers, Operating Engineers, and Cemerd Masons. There are
currently Seventy (70) full time field employees at Hardy & Harper, lac., with an on call list in
commwrication with our dispatcher. All employees attend an ongoing, state certified, weddysafety
training program and industry awareness program meeting.
Y
DEC. 19. 2007 3:25PM 714- 444 -2801 N0. 1546 — P. 4 -- —
Thy a beef descnption of our key representatives. Fred T. Maas Jr. (President,
and is the sole owner of the�eeIIfum Fred h sere President of the Aoe County Harper
and is currently a member of the board. Steven M. Kirschner Orang ry Chapter
(Vice Phesid�dChiefEstimator) has
28 years wilt the firm as a senior officer, chief estimator, and coordinator. Daniel T. Maas (CSO,
Operakoras Manager, Safe(yCoordinatar)has 11 years experienceintheindustryandis currentlythe
administrator of our Safety and Industry Awareness Pmgmms. Kristen Paulin (Office Manager,
Se"dary) has been with the firm for 17 years and oversees all accounting departments. Mike
Morgan (GwmW Superintendent) has fi years experience in the hAustrya nd is cuneutinvolved in all
maintenance contracts.
With the management team and production crew that Hardy & Harper maintains, we can easily
meetatl of Your needs.
Of
2
JAN. 2.200E 3:14PM 714-444 -2801
& Harper, Inc.
d4h*a&0,z
�
c
1312 EAST WARNER AVENUE
SWA ANA, CA 42705
(714) 444 -1851 • FAX (714) 444 -2801
January 2, 2008
Mr. Ed 8uW Ms. Cindy Asher
City of Newport Beach
Re: Performance of Work
AearMr. Burt,
N0. 1942 P. 2/2
Ef(HIBIT'A'
ht reference to the Statement of Qualifications for Maintenance Services Hardy & Harper
submitted, here is a complete scope of work that we provide for The City ofNewport Beach
regarding our annual maintenance contract. Prices are good thru 07 /31108.
Cur scope of work includes; .
- .Asphalt repairs
- Concrete repairs
- Installation of street signs
- Paint clubs
- Installation of fence posts
- Clean Catch basins
- C1= & repair drain limes & ditches
- On standby for emergency storm repairs and clean up.
- Maintenance underground drainage pipes through out the city
- Clean & repair bus shelters
- Clean & maintain right of way
If ould have y ons please contact Steve Kirschner (Qa (714)444 -1851.
rucerely,
Stove Kirschner
Vice President
DEC. 19.2007 31:25PM 714- 444 -1801
Hardy Est Harper, Inc.
Labor and
Foreman Lncluding Pickup
Operator/ Screedman
Laborer /Raker
REGULAR
1URLY TE
$82.00
$74.00
$64.00
Rental Rates
OVERTIME
SURLY RATE
$120.00
$109.00
$92.00
N0. 1546 5�
ENfNBIf'B'
$158.00
$144.00
$I21.00
Skip Loader
RATE
3-5 Roller
$115.00
per hour
8 Ton Roller
$90.00
per hour
Dump Truck
$120.00
per hour
Water Truck
$95.00
per hour
Saw Track
$87.00
perhour
Bobcat (w /Skidsmer)
$105.00
per hour
Bobcat (w /Grinder)
$120.00
per hour
Bobcat (w/Beaker)
$180.00
per lour
Backhoe
$140.00
per hour
950 Loader
$125.00
per hour
Sweeper
$170.00
per hour
$145.00
per hour
Paving Machine
1iALE
Pfck -Up
$165.00 per hour
Crew Truck w/ Tack @ $5.00 pergallon
$130.00 daily
Arrow Board
$300.00 daily
Compressorw/jackhammer
$100.00 daily
Berm Machine
$160.00 daily
Concrete Grinders
$200.00 daily
LowBoyMove -fns
$160.00 daily
Rental Equipment
$100.00 daily
Material
Cost + 15% mark-pi
Subcontractor
Cost + 15% mark ul
Miscellaneous Supplies
Cost + 15% mark -14
Cost,, 15% mark -ul
1 of 2 - Revised 07101/07
DEC-19,2007 1:25PM 714- 444 -2801
NO. 1546—P. 6---�
(2) Man Crew w /Equipment
RFGULAR
OURLY RATE
ii$180.00
OVERTIME
HOURLY RATE
(3) Man Crew w/Equipmznt
$269.00
(4) Man Crew w/Equipnm r
$270.00
$360.00
$403.00
(5) Man, Crew w/Eguipmeut
$450.00
$538.00
(6) Man Crew w/Equipment
$54000
$672.00
(7) Man Crew w/Equipment
.
$806.00
(8) Man Crew w/Equipmeut
$630.0
$940.00
(9) Man Crew w/E 1pmnt
$720.00
$1,075.00
(10) ManCreww/Ee
guipment
$810.00
$900.00
$1,210.00
$1,344.00
* «AZ 00 Per Hour For Use of'Orinderr*
Miscellaneous Supplies._._._...._ Cost +1596
Cost + 15go
Material Cost ._.._.......__... Cost + 15%
Rentals Cwt__..._.:.. C
Machine _... _..... ....................... ost + 15°,b
......- ....._ ._. $165.00perhour
Move Iu,__ ..... ....: .... ... _ $600.00
AC ...... _ ... _..._....._• $75.00per ton (FOB)
AB. ....... _ ..._._W .... _ ._... ........
-. $20.00 per ton (FOB)
Concrete_......._._._ $115.00 per C.Y.
2 of 2 Revised 0710YO7
PROFESSIONAL SERVICES AGREEMENT WITH
OLIVER MAHON ASPHALT, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AGREEMENT is made and entered into as of this 22nd day of January,
2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation
( "City "), and OLIVER MAHON, INC., a California corporation whose address is 182
Wells Place, Costa Mesa, California, 92627 ( "Contractor "), and is made with reference
to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has a need for on -call assistance for asphalt paving services in regards to
City infrastructure.
C. City desires to engage Contractor to perform on -call asphalt paving services in
various locations throughout the City.
D. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Contractor for purposes of Project shall be Bino
McMann.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31st day of December, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Contractor shall provide "On -Calf' asphalt paving services as described in the
Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Contractor shall provide a letter proposal
KJ
4.
for services requested by the City (hereinafter referred to as the "Letter
Proposal "). The Letter Proposal shall include the following:
(a) A detailed description of the services to be provided;
(b) The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
(c) The estimated number of hours and cost to complete the services;
(d) The time needed to finish the project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Contractor to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Contractor shall not be responsible for delays due
to causes beyond Contractors reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Contractor's control.
3.2 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to- exceed
basis, in accordance with the provisions of this Section and the Schedule of
Billing rates attached hereto as Exhibit "A" and incorporated herein by reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractors compensation for services performed in
accordance with this Agreement, including all reimbursable items and
subcontractor fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Utilities Department. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by City Council per Council
Policy F -14.
2
4.1 Contractor shall submit monthly invoices to City describing the work
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
costs incurred by Contractor:
A. The actual costs of subcontractors for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work' means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Bino McMann to
be its Project Manager. Contractor shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Contractor, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
3
Contractor warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. Steve Myrter
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or his /her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractors
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Contractor will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Contractor and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession.
Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
4
8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. 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 or materials and /or design defects [if the design originated with
Contractor]) or Contractor's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and /or omissions of Contractor,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
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.
10. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term
of this Contract: a Labor and Materials Payment Bond in a form acceptable to
the City Attorney. The Labor and Materials Payment 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 Kev
Rating Guide: Property- Casualty.
Contractor shall deliver, concurrently with execution of this Agreement, the Labor
and Materials Payment Bond, a certified copy of the "Certificate of Authority" of
5
the Insurer or Surety issued by the Insurance Commissioner, which authorizes
the Insurer or Surety to transact surety insurance in the State of California.
11. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over,
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
12. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Contractor on the Project.
13. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
14. PROGRESS
Contractor is responsible for keeping the Project Administrator and/or his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the work, activities performed and planned, and any meetings that
have been scheduled or are desired.
15. 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
0
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 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.
1. 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. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) days 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.
2. 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.
3. Automobile Liabilitv 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 One Million Dollars ($1,000,000) combined single limit for
each occurrence.
7
4. Professional Errors and Omissions Insurance. Contractor shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of One Million Dollars
($1,000,000).
D. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific 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 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) days written notice has been received
by City.
A. 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.
B. 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.
91
16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint - venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
17. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Contractor. Assignments of any or all rights, duties or obligations of the
Contractor under this Agreement will be permitted only with the express written
consent of City. Contractor shall not subcontract any portion of the work to be
performed under this Agreement without the written authorization of City.
18. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed documents
for other projects and any use of incomplete documents without specific written
authorization from Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Contractor prior notice and has received
from Contractor written consent for such changes.
19. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Contractor
�J
shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Contractor. By acceptance of CADD data, City agrees to indemnify
Contractor for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file for City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Contractor shall defend and indemnify City, its agents, officers,
representatives and employees against liability, including costs, for infringement
of any United States' letters patent, trademark, or copyright infringement,
including costs, contained in Contractor's drawings and specifications provided
under this Agreement.
22. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
23. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute
with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor
shall not discontinue work as a result of such withholding. Contractor shall have
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an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Contractor shall be entitled to receive interest on any
withheld sums at the rate of return that City earned on its investments during the
time period, from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and/or
restoration expense shall be bome by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
26. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractor's violation of this
Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
Utilities Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone: 949 - 644 -3011
Fax: 949 - 646 -5204
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All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Bino McMann
Oliver Mahon Asphalt, Inc.
182 Wells Place
Costa Mesa, CA 92627
Phone: 949 - 548 -6398
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provision, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days' prior written notice to Contractor. In the event of
termination under this Section, City shall pay Contractor for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Contractor shall conform to applicable City,
county, state and federal laws, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
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31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. 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.
33. 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.
34. 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.
35. 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.
36. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
37. 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.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By:
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
Edward D. Selich
Mayor
for the City of Newport Beach
OLIVER MAHON ASPHALT, INC.:
M
(Corporate Officer)
Title:
Print Name:
By:
(Financial Officer)
Title:
Print Name:
Attachments: On -Call Professional Services Agreement
Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
U2
"Superior quality at competitive prices since 1962!"
December 19, 2007
Attn: Ed Burt, Operations Mgr.
Utility Department
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
Oliver Mahon Asphalt, (State License #524528), has been paving in and around
Southern California since 1978. It was then when we first occupied our current
location, 182 Wells Place, Costa Mesa, CA.
Running (3) crews of 6 to 7 men, Oliver Mahon takes projects from small asphalt
patches to major construction. Our minimum cost for a 3 to 4 ton patch job is
$900.00; but we are usually running at least one major project (South Coast
Plaza, Linda Isle, Emerald Bay, Big Canyon) throughout the year. The jobs
occasionally will run into the millions.
We are small enough to tackle smaller jobs on very short notice and big enough
to be competitive on larger projects and maintain quality to ensure repeat
business.
A. 80% of our business is in Orange County. Most of which is in Newport
Beach, Huntington Beach, Costa Mesa and Irvine.
B. Our minimum show and pave is $900.00 (includes weekends). This
includes 3 tons of asphalt that will cover approximately a 10 x 10 at 5
inches.
C. Jobs up to 10 tons at $350 per ton
Jobs up to 20 tons at $210 per ton
Jobs up to 30 tons at $170 per ton
Jobs up to 50 tons at $150 per ton
182 WELLS PLACE, COSTA MESA, CA 92627 • PHONE: (949) 548 -6398 • CONTRACTORS LIC. #524528
"Superior quality at competitive prices since 1962!"
(All prices include supervision, equipment and labor)
Note: This does not include traffic control or permits. These prices are
guaranteed until December 2008
Contact for work is Bino McMann, who can be reached at (714) 920 -3736.
Thank you and we look forward to working with you in the future.
Sincerely,
Oliver Mahon Asphalt, Inc.
Bino McMann
Project Estimator
182 WELLS PLACE, COSTA MESA, CA 92627 • PHONE: (949) 548 -6398 • CONTRACTORS LIC. #524528