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HomeMy WebLinkAbout10 - Approval of M/RSA 10-1 NEWPORT BEACH City Council Staff Report CITY OF February 23, 2016 Agenda Item No. 10 ABSTRACT: The City of Newport Beach uses contract personnel to perform maintenance and repairs throughout Newport Harbor. The existing agreement to provide maintenance, repair, and abatement of various nuisances in the Harbor has been exhausted of its authorized funds. A Request for Proposals was issued to obtain new proposals to continue performance of these services. Staff requests City Council approval to enter into a Maintenance/Repair Services Agreement with Newport Dredging Company, Inc., DBA South Mooring Company, for a total limit not to exceed $300,000 over three (3) years. RECOMMENDATION: a) Approve a Maintenance Repair Services Agreement with Newport Dredging Company, Inc., DBA South Mooring Company for three (3) years and a total limit not to exceed $300,000.00, and authorize the Mayor and City Clerk to sign the agreement; b) Approve Budget Amendment No. 16BA-034 appropriating $100,000.00 from Tidelands Maintenance Fund unappropriated fund balance to Account No. 10080802- 851041 (Harbor Resources Maintenance – Piers, Floats, Docks Moorings); and c) Authorize agreement to be effective January 1, 2016 to allow for continuous service. FUNDING REQUIREMENTS: The Budget Amendment records and appropriates $100,000.00 in increased expenditure appropriations from Tidelands Maintenance Fund unappropriated fund balance to Account No. 10080802-851041 (Harbor Resources Division Maintenance – TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Shannon L. Levin, Harbor Resources Supervisor, Shannon@newportbeachca.gov PHONE: 949-270-8158 TITLE: Approval of Maintenance Repair Services Agreement with Newport Dredging Company, Inc., DBA South Mooring Company Approval of Maintenance Repair Services Agreement with Newport Dredging Company, Inc., DBA South Mooring Company February 23, 2016 Page 2 10-2 Piers, Floats, Docks, Moorings). Funding for maintenance and repair services will need to be continued into future fiscal years. The current adopted Capital Improvement Program (CIP) budget includes sufficient funding for expenses related to the removal and disposal of derelict vessels from Newport Harbor. These costs will be expensed to the Abandoned Watercraft Abatement project in the CIP budget, Account No. 15H24-unassigned-135-unassigned, which is funded by a grant from the State Division of Boating and Waterways. Account Description Account Number Amount Harbor Resources: Maintenance - Piers, Floats, Docks, Moorings 10080802-851041 $100,000.00 Abandoned Watercraft Abatement Project (SAVE Grant)15H24-unassigned-135-unassigned $ 50,000.00 Estimated Use through June 30, 2016 $150,000.00 Harbor Resources: Maintenance - Piers, Floats, Docks, Moorings Estimated Use Tidelands Maintenance July, 2016 – December, 2018 $ 90,000.00 Abandoned Watercraft Abatement Project (SAVE Grant) Estimated Use SAVE Grant July, 2016 – October, 2016 $ 60,000.00 $300,000.00 Proposed uses are as follows: Vendor Purpose Amount South Mooring Company Harbor maintenance, repair, cleaning $190,000.00 South Mooring Company Derelict boat removal and disposal $110,000.00 $300,000.00 DISCUSSION: The City uses private sector contractors and consultants to fulfill many operational and maintenance needs of Newport Harbor. Contracted work includes mooring management, marina management, dock and marina repairs, beach maintenance, mooring maintenance, engineering services and other services as needs arise. Following a competitive process, Newport Dredging Company, Inc. DBA South Mooring Company was awarded a Maintenance/Repair Services Agreement in February 2015. Compensation was set not to exceed $120,000.00 with a term good through October 2017. Within the first year, compensation limits have been reached due to the increased high demand for service, including: mooring maintenance; debris log boom installation; maintenance and retrieval; derelict boat demolition; twice weekly and quarterly public dock inspection, cleaning and maintenance; sea lion deterrent operations; and minor public dock maintenance. Additional harbor maintenance services are performed by other businesses as needed. Approval of Maintenance Repair Services Agreement with Newport Dredging Company, Inc., DBA South Mooring Company February 23, 2016 Page 3 10-3 A new Request for Proposals for harbor maintenance services was released to the public in December 2015. Proposers had the option to bid on any or all items within the Scope of Services. Three (3) firms submitted proposals. One (1) firm proposed to provide only mooring maintenance. Costs for services vary for each job task. Each proposal was individually evaluated and scored by a three-member panel on the basis of qualifications, experience, project approach and understanding, and references. Those scores are tallied and ranked as follows: Rank Proposer Score (out of 70) 1 South Mooring Company 60 2 John S. Meek Company, Inc.37 3 American Marine, Inc.15 Increased use of public amenities has resulted in increased focus on issues such as accessibility and availability of vessel pumpout stations, cleanliness of public piers, and remediation of derelict vessels. Approving this agreement allows staff to carry on operations quickly and with exceptional service. It is also anticipated that derelict boat demolitions will total $65,000.00 through June 2016 and $60,000.00 from July through October 2016, to comply with the conditions of the Surrendered and Abandoned Vessels Exchange grant from the Division of Boating and Waterways. Staff recommends awarding a Maintenance Repair Services Agreement for Harbor Services to South Mooring for three (3) years not to exceed $300,000. Approval of this agreement also authorizes continuous service from the last agreement. Approval of Maintenance Repair Services Agreement with Newport Dredging Company, Inc., DBA South Mooring Company February 23, 2016 Page 4 10-4 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A – Maintenance Repair Services Agreement Attachment B – Budget Amendment MAINTENANCE/REPAIR SERVICES AGREEMENT WITH SOUTH MOORING COMPANY FOR HARBOR MAINTENANCE AND REPAIR SERVICES THIS MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement")is made and entered into as of this 1st day of January,2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH,a California municipal corporation and charter city ("City"),and NEWPORT DREDGING COMPANY,INC.,a California corporation,DBA SOUTH MOORING COMPANY ("Contractor"),whose address is Post Office Box 528,Newport Beach,California 92661,and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to perform maintenance and/or repair services for City ("Project"). C.Contractor possesses the skill,experience,ability,background,certification and knowledge to provide the maintenance and/or repair services described in this Agreement. D.Contractor has examined the location of all proposed work,carefully reviewed and evaluated the specifications set forth by City for the Project,is familiar with all conditions relevant to the performance of services,and has committed to perform all work required for the compensation specified in this Agreement. NOW,THEREFORE,it is mutually agreed by and between the undersigned parties as follows: 1.TERM The term of this Agreement shall commence on the Effective Date,and shall terminate on December 31,2018,unless terminated earlier as set forth herein. 2.SERVICES TO BE PERFORMED 2.1 Contractor shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services"or "Work"). As a material inducement to City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and,in light of such status and experience,Contractor covenants that it shall follow community professional standards with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar ATTACHMENT A 10-5 circumstances,in performing the Work required hereunder,and that all materials will be of good quality. 2.2 Contractor shall perform all Work required to be performed,and shall provide and furnish all the labor,materials,necessary tools,expendable equipment and all utility and transportation services necessary for the Project. 3.TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule,the Services shall be performed to completion in a diligent and timely manner.The failure by Contractor to strictly adhere to the schedule set forth in Exhibit A, ifany, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing,Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control.However,in the case of any such delay in the Services to be provided for the Project,each party hereby agrees to provide notice within two (2)calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein,not later than two (2)calendar days after the start of the condition that purportedly causes a delay.The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.4 For all time periods not specifically set forth herein,Contractor shall respond in the most expedient and appropriate manner under the circumstances,by fax,hand-delivery or mail. 4.COMPENSATION TO CONTRACTOR 4.1 City shall pay Contractor for the Services on a time and expense not-to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference.Except as otherwise provided herein,no rate changes shall be made during the term of this Agreement without the prior written approval of City.Contractor's compensation for all Services performed in accordance with this Agreement,including all reimbursable items,shall not exceed Three Hundred Thousand Dollars and 00/100 ($300,000.00), without prior written amendment to the Agreement. 4.2 Contractor shall submit monthly invoices to City describing the Work performed the preceding month.Contractor's bills shall include the name and/or classification of employee who performed the Work,a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates,the date the Services were performed,the number of hours spent on all Work billed on an hourly basis,and a description of any reimbursable expenditures.City shall pay Contractor no later than thirty (30)calendar days after approval of the monthly invoice by City staff. Newport Dredging Company,Inc.dba South Mooring Company Page 2 10-6 4.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement,or specifically approved in writing in advance by City. 4.4 Contractor shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein,"Extra Work"means any Work that is determined by City to be necessary for the proper completion of the Project,but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B. 5.PROJECT MANAGER 5.1 Contractor shall designate a Project Manager,who shall coordinate all phases of the Project.This Project Manager shall be available to City at all reasonable times during the Agreement term.Contractor has designated Charles South to be its Project Manager.Contractor shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City.City's approval shall not be unreasonably withheld with respect to the removal or assignment of non-key personnel. 5.2 Contractor,at the sole discretion of City,shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6.ADMINISTRATION This Agreement will be administered by the Public Works Department.City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement.The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7.CITY'S RESPONSIBILITIES To assist Contractor in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Contractor,one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Contractor's Work schedule. 8.TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 8.1 Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement.Any deviation from the materials described in Exhibit A shall not be installed or utilized unless approved in advance and in writing by the Project Administrator. 8.2 All of the Services shall be performed by Contractor or under Contractor's supervision.Contractor represents that it possesses the personnel required to perform the Services required by this Agreement,and that it will perform all Services in a Newport Dredging Company,Inc.dba South Mooring Company Page 3 10-7 manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances.All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work,Contractor certifies that the Work conforms to the requirements of this Agreement,all applicable federal,state and local laws and legally recognized professional standards. 8.3 Contractor represents and warrants to City that it has,shall obtain and shall keep in full force and effect during the term hereof,at its sole cost and expense,all licenses,permits,qualifications,insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession.Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Contractor shall not be responsible for delay,nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts,accidents,acts of God,or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly,or delay or faulty performance by City,contractors,or governmental agencies. 9.RESPONSIBILITY FOR DAMAGES OR INJURY 9.1 City and all officers,employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the Services required hereunder;or for damage to property from any cause arising from the performance of the Project by Contractor,or its subcontractors,or its workers,or anyone employed by either of them. 9.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's Work on the Project,or the Work of any subcontractor or supplier selected by Contractor. 9.3 To the fullest extent permitted by law,Contractor shall indemnify,defend and hold harmless City, its City Council,boards and commissions,officers,agents, volunteers,and employees (collectively,the "Indemnified Parties")from and against any and all claims (including,without limitation,claims for bodily injury,death or damage to property),demands,obligations,damages,actions,causes of action,suits,losses, judgments,fines,penalties,liabilities,costs and expenses (including,without limitation, attorneys'fees,disbursements and court costs)of every kind and nature whatsoever (individually,a Claim;collectively,"Claims"),which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement,any Work performed or Services provided under this Agreement including, without limitation,defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts,errors and/or omissions of Contractor,its principals,officers,agents,employees,vendors, suppliers,consultants,subcontractors,anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Newport Dredging Company,Inc.dba South Mooring Company Page 4 10-8 9.4 Notwithstanding the foregoing,nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties.Nothing in this indemnity shall be construed as authorizing any award of attorneys'fees in any action on or to enforce the terms of this Agreement.This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable.The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. 9.5 Contractor shall perform all Work in a manner to minimize public inconvenience and possible hazard,to restore other work areas to their original condition and former usefulness as soon as possible,and to protect public and private property.Contractor shall be liable for any private or public property damaged during the performance of the Work by Contractor or its agents. 9.6 To the extent authorized by law,as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 9.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 10.INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City.The manner and means of conducting the Work are under the control of Contractor,except to the extent they are limited by statute,rule or regulation and the expressed terms of this Agreement.No civil service status or other right of employment shall accrue to Contractor or its employees.Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents,to be the agents or employees of City.Contractor shall have the responsibility for and control over the means of performing the Work,provided that Contractor is in compliance with the terms of this Agreement.Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 11.COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed.City agrees to cooperate with Contractor on the Project. 12.CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in Newport Dredging Company,Inc.dba South Mooring Company Page 5 10-9 order to ensure the Project proceeds in a manner consistent with City goals and policies. 13.PROGRESS Contractor is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project,activities performed and planned,and any meetings that have been scheduled or are desired. 14.INSURANCE Without limiting Contractor's indemnification of City,and prior to commencement of Work,Contractor shall obtain,provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement,policies of insurance of the type,amounts,terms and conditions described in the Insurance Requirements attached hereto as Exhibit C,and incorporated herein by reference. 15.PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Contractor and any subcontractor.In accordance with the California Labor Code (Sections 1770 et seq.),the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft,classification,or type of workman or mechanic needed to execute the Agreement.A copy of said determination is available by calling the prevailing wage hotline number (415)703-4774,and requesting one from the Department of Industrial Relations.The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages.It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws,rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 16.PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement,the Services to be provided under this Agreement shall not be assigned,transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment:The sale,assignment,transfer or other disposition of any of the issued and outstanding capital stock of Contractor,or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint-venture or syndicate or cotenancy,which shall result in changing the control of Contractor.Control means fifty percent (50%)or more of the voting power or twenty-five percent (25%)or more of the assets of the corporation,partnership or joint- venture. Newport Dredging Company,Inc.dba South Mooring Company Page 6 10-10 17.SUBCONTRACTING The subcontractors authorized by City, if any,to perform Work on this Project are identified in Exhibit A.Contractor shall be fully responsible to City for all acts and omissions of any subcontractor.Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City.Except as specifically authorized herein,the Services to be provided under this Agreement shall not be otherwise assigned, transferred,contracted or subcontracted out without the prior written approval of City. 18.OWNERSHIP OF DOCUMENTS Each and every report,draft,map,record,plan,document and other writing produced (hereinafter "Documents"),prepared or caused to be prepared by Contractor, its officers,employees,agents and subcontractors,in the course of implementing this Agreement,shall become the exclusive property of City,and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party.Contractor shall,at Contractor's expense,provide such Documents to City upon prior written request. 19.CONFIDENTIALITY All Documents,including drafts,preliminary drawings or plans,notes and communications that result from the Services in this Agreement,shall be kept confidential unless City expressly authorizes in writing the release of information. 20.RECORDS Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement.Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years,or for any longer period required by law, from the date of final payment to Contractor under this Agreement.All such records and invoices shall be clearly identifiable.Contractor shall allow a representative of City to examine,audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work,data,Documents,proceedings and activities related to the Agreement for a period of three (3)years from the date of final payment to Contractor under this Agreement. 21.WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment.Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement.Contractor shall not discontinue Work as a result of such withholding.Contractor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed Newport Dredging Company,Inc.dba South Mooring Company Page 7 10-11 sums.Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period,from the date of withholding of any amounts found to have been improperly withheld. 22.CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the Project. 23.CONFLICTS OF INTEREST 23.1 Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"),which (1)requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement,and (2)prohibits such persons from making,or participating in making,decisions that will foreseeably financially affect such interest. 23.2 If subject to the Act,Contractor shall conform to all requirements of the Act.Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City.Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 24.NOTICES 24.1 All notices,demands,requests or approvals,including any change in mailing address,to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally,or on the third business day after the deposit thereof in the United States mail,postage prepaid,first- class mail,addressed as hereinafter provided. 24.2 All notices,demands,requests or approvals from Contractor to City shall be addressed to City at: Attn:Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach,CA 92658 24.3 All notices,demands,requests or approvals from City to Contractor shall be addressed to Contractor at: Attn:Charles South Newport Dredging Company,Inc.dba South Mooring Company P.O.Box 528 Newport Beach,CA 92661 Newport Dredging Company,Inc.dba South Mooring Company Page 8 10-12 25.CLAIMS Unless a shorter time is specified elsewhere in this Agreement,before making its final request for payment under this Agreement,Contractor shall submit to City, in writing,all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment.Contractor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement,Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 26.TERMINATION 26.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required,that party shall be deemed in default in the performance of this Agreement.If such default is not cured within a period of two (2)calendar days,or if more than two (2)calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2)calendar days after receipt of written notice of default,specifying the nature of such default and the steps necessary to cure such default,and thereafter diligently take steps to cure the default,the non-defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.2 Notwithstanding the above provisions,City shall have the right,at its sole and absolute discretion and without cause,of terminating this Agreement at any time by giving no less than seven (7)calendar days'prior written notice to Contractor.In the event of termination under this Section,City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid.On the effective date of termination, Contractor shall deliver to City all reports,Documents and other information developed or accumulated in the performance of this Agreement,whether in draft or final form. 27.LABOR 27.1 Contractor shall conform with all applicable provisions of state and federal law including,but not limited to,applicable provisions of the federal Fair Labor Standards Act ("FLSA")(29 USCA §201,et seq.). 27.2 Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give written notice to City,and provide all relevant information. 27.3 Contractor represents that all persons working under this Agreement are verified to be U.S.citizens or persons legally authorized to work in the United States. Newport Dredging Company,Inc.dba South Mooring Company Page 9 10-13 27.4 To the fullest extent permitted by law,Contractor shall indemnify,defend, and hold harmless City, its City Council,boards and commissions,officers,agents, volunteers,and employees from loss or damage,including but not limited to attorneys' fees,and other costs of defense by reason of actual or alleged violations of any applicable federal,state and local labor laws or law,rules,and/or regulations.This obligation shall survive the expiration and/or termination of the Agreement. 28.STANDARD PROVISIONS 28.1 Recitals.City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 28.2 Compliance with all Laws.Contractor shall,at its own cost and expense, comply with all statutes,ordinances,regulations and requirements of all governmental entities,including federal,state,county or municipal,whether now in force or hereinafter enacted.In addition,all Work prepared by Contractor shall conform to applicable City, county,state and federal laws,rules,regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver.A waiver by either party of any breach,of any term,covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term,covenant or condition contained herein,whether of the same or a different character. 28.4 Integrated Contract.This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto,and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein.No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies.In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto,the terms of this Agreement shall govern. 28.6 Interpretation.The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments.This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 28.8 Severability.If any term or portion of this Agreement is held to be invalid, illegal,or otherwise unenforceable by a court of competent jurisdiction,the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue.The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to Newport Dredging Company,Inc.dba South Mooring Company Page 10 10-14 this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange,State of California. 28.10 Egual Opportunity Employment.Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor,employee or applicant for employment because of race,religious creed,color, national origin, ancestry,physical handicap,medical condition,marital status,sex,sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys'Fees.In the event of any dispute or legal action arising under this Agreement,the prevailing party shall not be entitled to attorneys'fees. 28.12 Counterparts.This Agreement may be executed in two (2)or more counterparts,each of which shall be deemed an original and all of which together shall constitute one (1)and the same instrument. [SIGNATURES ON NEXT PAGE] Newport Dredging Company,Inc.dba South Mooring Company Page 11 10-15 IN WITNESS WHEREOF,the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:2/J2/1 ^2 Aaron C.Harp City Attorney CA*<tl\l*ll(p CITY OF NEWPORT BEACH, a California municipal corporation Date: By:. Diane B.Dixon Mayor ATTEST: Date: CONTRACTOR:NEWPORT DREDGING COMPANY,INC.,a California corporation DBA SOUTH MOORING COMPANY Date: By:. Leilani I.Brown City Clerk Attachments: By:. Charles South President Date: By:. Frank Kaiser Assistant Secretary [END OF SIGNATURES] Exhibit A -Scope of Services Exhibit B -Schedule of Billing Rates Exhibit C -Insurance Requirements Newport Dredging Company,Inc.dba South Mooring Company Page 12 10-16 EXHIBIT A SCOPE OF SERVICES Newport Dredging Company,Inc.dba South Mooring Company Page A-1 10-17 SCOPE OF SERVICES Overview of Services Requested: The following is a list of all the services requested as part of this RFP - proposers may submit proposals on any or all of the requested services. Please refer to the Proposal Format Checklist (Attachment A)for instructions on how to respond. Contractor will be responsible for deploying and storing any vessels or equipment related to services. 1.Mooring Maintenance Services. a. Includes inspection,testing,painting, and numbering of the City's mooring buoys, inspection of mooring weight and replacement of chain and all other mooring components on biannual basis or as needed, i. Sign buoys and shore moorings ii. Off shore moorings iii.Mooring realignment iv.Other mooring related services as applicable 2. Log boom. a.Annual deployment and retrieval of log boom coordinated with City crew, i.Deployment and retrieval ii. Diver (if needed) iii. Log boom adjustment iv.Periodic removal of debris trapped by the log boom v.Other log boom services as applicable 3.Sea Lion abatement. a.Patrol with a small boat during peak sea lion season to deter haul outs and nuisance.This service may be performed during nighttime hours. b.Secure vessels or structures as requested by Harbor Resources. 4.Harbor Cleanup. a.After storm events or as needed retrieve debris from Harbor and properly dispose of materials. 5. Dock repair. a.Includes but may not be limited to minor refurbishment such as replacement of piling and rub rail,aligning or lifting gangway,replacing floats,cleats etc... 6.Boat Demolition. a.Demolition of vessels may include but may not be limited to relocation,haul out at a local shipyard or Rhine Wharf,demolition,and proper disposal.Contractor will not be responsible for lien notifications and DMV processing. 7.Ongoing Dock Cleaning. a. At least twice weekly and more often as requested by City,clean 11 public docks located at:Opal Avenue,Sapphire Avenue,Coral Avenue,Emerald Avenue,Park Avenue,M Street,Washington Street,Fernando Street,15th Street,19th Street,and Rhine Channel 4 | P age 10-18 b.Cleaning includes but may not be limited to removal of all trash and litter on public pier and immediate area;cleaning offish boards;topical cleaning of float,gangway,pier and railing from any nuisance. 8.Ongoing pumpout inspections. a. As required by Cityof Newport Beach,inspect the four public pumpout stations located at Fernando Street Public Pier,American Legion Pumpout Dock(2),and Washington Street Public Pier. b.Perform dye tests and vacuum testing as required by City. 9.Maintenance of pumpouts. a. On-call maintenance of pumpouts as necessary. b.Quarterly maintenance of the five public pumpouts located at Fernando Street Public Pier,American Legion Pumpout Dock (2),Washington Street Public Pier,and Balboa Yacht Basin. c.Other pumpout maintenance or installation services as requested by Harbor Resources Project Administration: Based on the results of this solicitation process,the City may enter into one or more maintenance/repair and/or on-call agreements (or a combination of both)with the proposer(s)deemed most qualified for each of the services listed above.Maintenance agreements may have standard recurring schedules for services.On-call agreements do not guarantee or imply any specific quantity of work over the proposed contract period.When the need for services arises,the City shall request in writing,the necessary services required in adequate detail.Contractor shall then provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal"). The Letter Proposal shall include the following: • A detailed description of the Services to be provided; •The estimated number of hours and cost to complete the Services;and •The time needed to finish the specific Project. City will assess the Letter Proposal to ensure that services and costs proposed are commensurate with those provided in the Contractor's RFP response.No Services shall be provided until the City has provided written acceptance of the Letter Proposal.Once authorized to proceed,Contractor shall diligently perform the duties in the approved Letter Proposal. 5 |Page 10-19 EXHIBIT B SCHEDULE OF BILLING RATES Newport Dredging Company,Inc.dba South Mooring Company Page B-1 10-20 Service Offerings Mooring Services a.Includes inspection,testing,painting,and numbering of the City's mooring buoys, inspection of mooring weight and replacement of chain and all other mooring components on biannual basis or more frequently,as needed. • Sign buoys and shore moorings • Off shore moorings •Mooring realignment •Other mooring related services as applicable b.Cost of Services • Sign Buoysand shore moorings $190.00 plus parts at cost plus 15% • Off shore moorings $385.00 plus parts at cost plus 15% • Mooring realignment $115.00 Log Boom Services a.Annual deployment and retrieval of log boom coordinated with City crew. •Deployment and retrieval • Diver (if needed) • Log boom adjustment •Periodic removal of debris trapped by the log boom •Other log boom services as applicable b.Cost of Services • Deployment and retrieval $385.00 hr. plus parts at cost plus 15% • Diver if needed $175.00 •Log boom adjustment $385.00 •Periodic removal of debris $385.00 trapped by the log boom Sea Lion abatement a.Patrol with a small boat during peak sea lion season to deter haul outs and nuisance. This service may be performed during nighttime hours. b.Secure vessels or structures as requested by Harbor Resources c.Cost of Services • Sea Lion abatement boat and man $100.00 hr. Harbor Clean-up a. After storm events or as needed retrieve debris from Harbor and proper disposal of materials. b.Cost of Services • Harbor clean up barge $385.00 10-21 5.Boat Demolition a.Demolition of vessels may include but may not be limited to relocation,haul out at a local shipyard or Rhine Wharf,demolition and proper disposal b.Cost of Services • Bid per project 6. Dock Cleaning a. At least twice weekly and more often as requested by City, Clean 11 public docks.Refer to Figure A for a map of dock locations. b.Cleaning includes but may not be limited to removal of all trash and litter on public pier and immediate area;cleaning offish boards;topical cleaning of float,gangway pier and railing from any nuisance. c.Cost of Services • DockCleaning $70.00 hr. 2 days per week 7.Ongoing Pumpout Inspections a. As required by Cityof Newport Beach,inspect the four public pump out stations located at Fernando Street Public Pier,American Legion Pump out Dock,and Washington Street Public Pier. b.Perform dye tests and vacuum testing as required by City. c.Maintenance of pumpouts. d. On-call Maintenance of pump outs as necessary e.Quarterly maintenance of the five public pump outs located at Fernando Street Public Pier,American Legion Pump out Dock (2),Washington Street Public Pier,and Balboa Yacht Basin. f.Cost of Services • Pump out inspection $70.00 hr. 2 days per week • Pump out mechanic labor $100.00 hr.materials plus 15% • Pump out mechanic travel $20.00 hr. • Pump out mechanic mileage $0.50 per mile 8. Dock repair a.Includes but may not be limited to minor refurbishment such as replacement of piling and rub rail,aligning or lifting gangway,replacing gloats,cleats etc. b.Cost of Services • Piling replacement Bid per project •Other repairs $70.00 hr. Organizational Information Main point of contact:Chuck South -President Office Staff:Frank Kaiser (For information on Deborah Marley Billing,insurance,scheduling, and human resources) 10-22 EXHIBIT C INSURANCE REQUIREMENTS -MAINTENANCE/REPAIR/JANITORIAL SERVICES 1.Provision of Insurance.Without limiting Contractor's indemnification of City,and prior to commencement of Work,Contractor shall obtain,provide and maintain at its own expense during the term of this Agreement,policies of insurance of the type and amounts described below and in a form satisfactory to City.Contractor agrees to provide insurance in accordance with requirements set forth here.If Contractor uses existing coverage to comply and that coverage does not meet these requirements,Contractor agrees to amend,supplement or endorse the existing coverage. 2.Acceptable Insurers.All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California,with an assigned policyholders' Rating of A- (or higher)and Financial Size Category Class VII (or larger)in accordance with the latest edition of Best's Key Rating Guide,unless otherwise approved by the City's Risk Manager. 3.Coverage Requirements. A.Workers'Compensation Insurance.Contractor shall maintain Workers' Compensation Insurance,statutory limits,and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000)each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California,Section 3700 of the Labor Code. Contractor shall submit to City,along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents,employees and volunteers. B.General Liability Insurance.Contractor shall maintain commercial general liability insurance and,if necessary,umbrella liability insurance,with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000)per occurrence,two million dollars ($2,000,000)general aggregate.The policy shall cover liability arising from premises,operations,products- completed operations,personal and advertising injury,and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C.Automobile Liability Insurance.Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement,including coverage for any owned,hired,non-owned or rented Newport Dredging Company,Inc.dba South Mooring Company Page C-1 10-23 vehicles,in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D.Pollution Liability Insurance.If required,Contractor shall maintain a policy providing contractor's pollution liability ("CPL")coverage with a total limit of liability of no less than one million dollars ($1,000,000)per loss and one million dollars ($1,000,000)in the aggregate per policy period.Claims- made policies require a 5-year extended reporting period.The CPL policy shall include coverage for cleanup costs,third-party bodily injury and property damage,including loss of use of damaged property or of property that has not been physically injured or destroyed,resulting from pollution conditions caused by contracting operations.Coverage as required in this paragraph shall apply to sudden and non-sudden pollution conditions resulting from the escape or release of smoke,vapors,fumes,acids, alkalis,toxic chemicals,liquids,or gases,waste materials,or other irritants,contaminants,or pollutants.The CPL shall also provide coverage for transportation and off-Site disposal of materials.The policy shall not contain any provision or exclusion (including any so-called "insured versus insured"exclusion or "cross-liability"exclusion)the effect of which would be to prevent,bar,or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. Other Insurance Requirements.The policies are to contain,or be endorsed to contain,the following provisions: A.Waiver of Subrogation.All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers,agents,officials,employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss.Contractor hereby waives its own right of recovery against City,and shall require similar written express waivers from each of its subconsultants. B.Additional Insured Status.All liability policies including general liability, products and completed operations,excess liability,pollution liability,and automobile liability,if required,shall provide or be endorsed to provide that City and its officers,officials,employees,and agents shall be included as insureds under such policies. C.Primary and Non Contributory.All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. Newport Dredging Company,Inc.dba South Mooring Company Page C-2 10-24 D.Notice of Cancellation.All policies shall provide City with thirty (30) calendar days'notice of cancellation (except for nonpayment for which ten (10)calendar days'notice is required)or nonrenewal of coverage for each required coverage. 5.Additional Agreements Between the Parties.The parties hereby agree to the following: A.Evidence of Insurance.Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein,along with a waiver of subrogation endorsement for workers'compensation and other endorsements as specified herein for each coverage.Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance.Current certification of insurance shall be kept on file with City at all times during the term of this Agreement.City reserves the right to require complete,certified copies of all required insurance policies,at any time. B.City's Right to Revise Reguirements.City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60)calendar days advance written notice of such change.If such change results in substantial additional cost to Contractor,City and Contractor may renegotiate Contractor's compensation. C.Right to Review Subcontracts.Contractor agrees that upon request,all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City,or its employees.Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein,and Contractor shall ensure that City is an additional insured on insurance required from subcontractors.For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D.Enforcement of Agreement Provisions.Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E.Reguirements not Limiting.Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage,limits or other requirements,or a waiver of any coverage normally provided by any insurance.Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, Newport Dredging Company,Inc.dba South Mooring Company Page C-3 10-25 or to the exclusion of other coverage,or a waiver of any type.If the Contractor maintains higher limits than the minimums shown above,the City requires and shall be entitled to coverage for higher limits maintained by the Contractor.Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F.Self-insured Retentions.Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated,lowered,or replaced by a deductible.Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non-Compliance If Contractor or any sub consultant fails to provide and maintain insurance as required herein,then City shall have the right but not the obligation,to purchase such insurance,to terminate this Agreement,or to suspend Contractor's right to proceed until proper evidence of insurance is provided.Any amounts paid by City shall,at City's sole option,be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H.Timely Notice of Claims.Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract,and that involve or may involve coverage under any of the required liability policies.City assumes no obligation or liability by such notice,but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I.Contractor's Insurance.Contractor shall also procure and maintain,at its own cost and expense,any additional kinds of insurance,which in its own judgment may be necessary for its proper protection and prosecution of the Work. Newport Dredging Company,Inc.dba South Mooring Company Page C-4 10-26 10-27 ATTACHMENT B