Loading...
HomeMy WebLinkAboutC-3659 - Contractor Agreement for Storm Drain and V-Ditch Cleaning ServicesIL • a C -3 (as� CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this 22 day of July of 2003, by and between the City of Newport Beach, a Municipal Corporation and Charter City ( "City"), and Justin's Jetting a California Corporation ( "Contractor "), is made with reference to the following Recitals: RECITALS WHEREAS, the City of Newport Beach is a co- permittee to the County of Orange National Pollution Discharge Elimination System. Permit ( NPDES), WHEREAS, the City is obligated under NPDES Permit requirements to clean 80% of 2,900 City catch basins annually, and clean 100% of all catch basins every two years. WHEREAS, maintenance of the City storm drain system is primarily performed by City personnel utilizing City equipment. WHEREAS, the City Council has determined that contract services will be necessary to supplement current City storm drain maintenance efforts in order to comply with the NPDES permit requirements WHEREAS, On October 8, 2002 a Request for Proposals (RFP) was distributed to six firms that perform storm drain maintenance and related services; and proposals were received from each of the six firms. WHEREAS, the low- bidder was hired to perform the work in December 2002, but has requested to- revise its bid prior to commencing the same work tasks in 2003; and the revision exceeds the bid proposed by the second low- bidder, Justin's Jetting . WHEREAS, Justin's Jetting , desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, Justin's Jetting has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, the Parties agree as follows: 1. TERM The Term of this Agreement shall be for a period of one (1) year. The term shall commence within ten (10) working days of City Council Approval and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for four (4) additional one (1) year terms (automatic extensions) with the first extension to commence upon the expiration of the initial term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any automatic extension, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ( "Contract Services ") as described in the RFP and the Contractor's proposal. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of maintenance as necessary to ensure highest industry standards of maintenance. The Proposal and . Unit Costs are contained in Exhibits A and B respectively. All of the Exhibits, the RFP and Contractor's Proposal are considered to be a part of, and are incorporated into, this Agreement. 3. WORKMANSHIP, SUPERVISION AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. B. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. C. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. D. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor 2 personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. E. All work shall be performed in accordance with the highest maintenance standards. F. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. Vehicles and equipment must meet all current federal and state regulations. All vehicles shall bear the identification of the Contractor and clearly post "Serving the City of Newport Beach." G. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. H. Persons employed by the Contractor who are found not to be satisfactory by the City shall be discharged or reassigned by the Contractor on fifteen (15) days notice from the City. 4. COMPENSATION TO CONTRACTOR For each catch basin cleaned by the Contractor, the City shall pay Contractor the rate of $40 per catch basin. For each linear foot of v- ditches cleaned by the Contractor, the City shall pay Contractor the rate of $1.10 per linear foot. Contractor shall submit invoices to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices ". 5. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 3 Y • 7. HOLD HARMLESS A. Contractor assumes all risk in any way related to the performance of Contract Services. Contractor agrees to indemnify, defend, save and hold harmless City, its elected and appointed boards and commissions, officers, agents, and employees from and against any loss, damages, liability, claims, costs, expenses or damages, including, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from, or in any way related to, the performance of Contract Services required by this Agreement, provided, however, Contractor's obligation in this regard shall not apply in the event of the fraud or willful misconduct by City, its officials, agents, employees or representatives. B. Contractor shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, costs and expenses whatsoever, including reasonable attorneys' fees, which may accrue to any and all persons, or business entities furnishing or supplying work, services, materials, equipment or supplies to Contractor in the performance of services under this Agreement. C. In the event that Contractor and City are sued by a third party for damages caused or allegedly caused by negligent or other wrongful conduct of Contractor, or by a dangerous condition of City's property created by Contractor or existing while the property was under the control of Contractor, Contractor shall not be relieved of its obligation to defend, indemnify, and hold City and its officers, employees and representative harmless, by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the City. 8. INSURANCE A. In addition to Contractor's obligation to defend, indemnify, and hold City harmless, Contractor shall obtain and maintain at its own expense during the term of this Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Insurance policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to performing any Contract Services. B. Prior to the commencement of work, Contractor shall provide to City certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements. At the L" A 0 0 option of City, Contractor shall provide copies of all policies, providing coverage as required by this Agreement. Contractor shall provide the following insurance, with Best's Class A -7 or better carriers: Worker's Compensation and Employers Liability insuring statutory Workers' Compensation limits as required by the California Labor Code and one million dollars ($1,000,000) per accident Employers' Liability; Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury; and property damage. If the policy contains a general aggregate limit, then the aggregate limit shall not be less than two million dollars ($2,000,000); 3. Commercial auto liability and property insurance covering all owned and rented vehicles of Contractor coverage Code 1 "any auto" with a minimum amount of one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage; Endorsements to the policies providing the above insurance shall be obtained by Contractor, adding the following three provisions: Additional Insured: "The City of Newport Beach and its officers, employees, agents, elected officials, and volunteers are covered as additional insured." 2. Notice: "The policy shall not terminate, nor shall it be canceled or the coverage reduced, until thirty (30) days after written notice is given to City." 3. Other Insurance: "Any other insurance maintained by the City of Newport Beach shall be excess and not contributing with the insurance provided by this policy." E. Contractor shall give to City prompt and timely notice of any claim made or suit instituted arising out of Contractor's performance of this Agreement. Contractor shall also procure and maintain, at its own cost and expense, 5 any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and performance of Contract Services. F. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor, a waiver of any right of subrogation, which any such insurer of Contractor may acquire against City by virtue of the payment of any loss under insurance. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT 10. A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. N. D. Contractor shall complete a weekly report indicating work performed and submit this completed report to the City Administrator within two (2) days after the end of each week. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional services as requested by the Administrator. Additional services, may be billed in accordance with the per square foot unit price proposed by the Contractor Exhibit B. B. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period 7 0 0 of less than a full one (1) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeable be materially 10 affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Justin's Jetting 4455 Feather River Road Corona, CA 92880 20. TERMINATIONIDEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this or authorized by law, terminate this Agreement by giving written notice of termination. 0 0 9 B. This Agreement may be terminated at anytime, without cause by City or Contractor, upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for Contract Services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate landscape or hardscape maintenance standards and/or Contractor fails to satisfactorily perform Contract Services. City shall have the right to return funds withheld until the City Administrator determines that Contract Services are performed as well as required by this Agreement. 21. COST OF LITIGATION If any legal action is necessary to enforce any provision of this Agreement, or for damages by reason for an alleged breach of any provisions of this Agreement, the parties agree that the court with jurisdiction over the action may determine and fix reasonable attorneys' fees and expenses to be paid to the prevailing party. 22. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 23. WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: LaVonne Harkless, City Clerk APPROVED AS TO FORM: f:lme1ddd9eUu1y03\RFP- C0ntMCt JustinJet_July03 CITY OF NEWPORT BEACH A Municipal Corporation 11 JrnSf!„� .ieffinol Contractor By: .�a�fH G✓eI�AfYI Title: 01--n er Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E • s LIST OF EXHIBITS 12 C�) vo wrm%ccrslAc" CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 July 22, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department David E. Niederhaus, Director, 644 -3055 SUBJECT: Contract Award for Storm Drain and V -Ditch Cleaning Services APPLICANT NAME: N/A ISSUE: Should the City award a contract to Justin's Jetting to clean City storm drain catch basins and V- ditches? RECOMMENDATION: Approve the attached contract agreement to Justin's Jetting for an amount not to exceed $135,210. DISCUSSION: Background: In 1987, amendments to the Federal Clean Water Act added Section 402 (p) which established a framework for regulating municipal and industrial (including construction) storm water discharges under the National Pollutant Discharge Elimination System ( NPDES). The regulation requires NPDES permits for storm water discharges from municipal storm sewer systems, as well as other designated storm discharges that are considered significant contributors of pollutants to the waters of the United States. The City of Newport Beach is a co- permittee to the County of Orange NPDES permit and is obligated to comply with the orders of the local offices of the California Regional Water Quality Control Board (Santa Ana Region). As a co- permittee, the City is obligated to inspect, clean and maintain at least 80% of its drainage facilities on an annual basis, with 100% of the facilities included in a two -year period beginning July 2002. To date, the City maintains and is responsible for 2,900 storm drains and 15,645 linear feet of v- ditches. • Contract Award to Justin's Jetting July 22, 2003 Page 2 In response to the permit requirements, a committee was established consisting of the City Manager, Assistant City Manager (Kiff), the General Services, Administrative Services, Utilities, Planning and Building Directors, and the Assistant City Attorney. The Committee's objective was to determine how the City's operations would be impacted by the new requirements and to make recommendations for permit compliance. The Committee met in August 2002, November 2002, and January 2003. The Committee's efforts included a review of existing maintenance operations, identification of the current maintenance cost per catch basin, a discussion of short and long -term goals, and a review of cost effective options for achieving permit compliance. At the recommendation of the City NPDES Committee, staff obtained competitive bids from prospective contractors in October 2002 to clean the City's storm drain facilities. Six firms responded. The lowest bid was submitted by United Stormwater, however, no action was taken by the Committee at that time to recommend the award of a contract. In November 2002, after reporting to the NPDES Committee that City crews would soon be diverted from storm drain tasks to winter tidal valve tasks, staff was directed by the City Manager to proceed with contracting storm drain maintenance services to assure that 100% of the City's drainage facilities were cleaned prior to the end of the current fiscal year, and in advance of the rainy season. United Stormwater was hired to perform the services and began work in mid - December. The work was completed by early January. A total of 888 basins were cleaned by the contractor at a cost of $31.12 per catch basin. Soon after commencing the work, the contractor informed City staff that its actual cost to perform the work was significantly higher than proposed. At that time, United Stormwater confirmed that it would complete the project at the proposed unit cost of $31.12. It further stated its desire to continue to provide storm drain services in the 2003 -04 fiscal year, but that it would have to revise its proposal prior to commencing any tasks in the new fiscal year. Staff proceeded to re- evaluate the October 2002 proposals and determined to contact the second low bidder, Justin's Jetting who reaffirmed their bid and interest in performing the requested work. Justin's Jetting proposed a rate of $40.00 per catch basin and $1.10 per linear foot of v- ditches. Staff met with Justin's Jetting to further discuss the work to be performed. The attached agreement is the result of those discussions. The new contractor will clean 2,900 storm drains at a cost of $116,000 and 15,645 linear feet of v- ditches at a cost of $17,209.50. Staff is recommending that the work be performed by contract although the cost to perform the work in -house is significantly lower. For example, the contract unit rate per catch basin does not include rodding the five feet of lateral outfall line for each catch basin. • Contract Award to Justin's Jetting July 22, 2003 Page 3 The contractor's cost to rod each lateral is an additional $17 for a total contract cleaning cost of $57. When necessary, the contractor will be asked to rod certain lines at the additional cost. The cost for a two -man City crew to clean and rod one basin and lateral is approximately $44.00. However, the City lacks budgeted man -hours to undertake the additional work. In addition, the Department lost two positions effective July 1 (including a maintenance worker in the Storm Drain unit of the Operations Support Division) to the newly created water quality division headed by the City Managers office. In short, the proposed contract will ensure that the City satisfies the requirements of the NPDES permit in a timely and efficient manner. Budget Analysis On June 24, the Council authorized a budget amendment to fund the contract cleaning of storm drains and v- ditches in Fiscal Year 2003 -04. The amendment transferred $135,210 from unencumbered reserves to the Operations Support Professional and Technical Services (8080) Account. Environmental Review: Not applicable. Funding Availability: The requested funds are available in the current budget. Prepared by: Submitted by: am Eldridge David E. Niederhaus Administrative Analyst Director Attachment: (A) Proposed Contractor Agreement with Justin's Jetting 0 0 CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this 22 day of July of 2003, by and between the City of Newport Beach, a Municipal Corporation and Charter City ( "City "), and Justin's Jetting a California Corporation ( "Contractor"), is made with reference to the following Recitals: RECITALS WHEREAS, the City of Newport Beach is a co- permittee to the County of Orange National Pollution Discharge Elimination System Permit ( NPDES), WHEREAS, the City is obligated under NPDES Permit requirements to clean 80% of 2,900 City catch basins annually, and clean 100% of all catch basins every two years. WHEREAS, maintenance of the City storm drain system is primarily performed by City personnel utilizing City equipment. WHEREAS, the City Council has determined that contract services will be necessary to supplement current City storm drain maintenance efforts in order to comply with the NPDES permit requirements WHEREAS, On October 8, 2002 a Request for Proposals (RFP) was distributed to six firms that perform storm drain maintenance and related services; and proposals were received from each of the six firms. WHEREAS, the low- bidder was hired to perform the work in December 2002, but has requested to revise its bid prior to commencing the same work tasks in 2003; and the revision exceeds the bid proposed by the second low- bidder, Justin's Jetting . WHEREAS, Justin's Jetting , desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, Justin's Jetting has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, the Parties agree as follows: 0 1. TERM 0 The Term of this Agreement shall be for a period of one (1) year. The term shall commence within ten (10) working days of City Council Approval and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for four (4) additional one (1) year terms (automatic extensions) with the first extension to commence upon the expiration of the initial term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any automatic extension, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ( "Contract Services ") as described in the RFP and the Contractor's proposal. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of maintenance as necessary to ensure highest industry standards of maintenance. The Proposal and Unit Costs are contained in Exhibits A and B respectively. All of the Exhibits, the RFP and Contractor's Proposal are considered to be a part of, and are incorporated into, this Agreement. 3. WORKMANSHIP, SUPERVISION AND EQUIPMENT A. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. B. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. C. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. D. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor 2 E personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. E. All work shall be performed in accordance with the highest maintenance standards. F. All vehicles and equipment used in conjunction with the work shall be in good working order and, have appropriate safety guards. Vehicles and equipment must meet all current federal and state regulations. All vehicles shall bear the identification of the Contractor and clearly post "Serving the City of Newport Beach." G. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. N. Persons employed by the Contractor who are found not to be satisfactory by the City shall be discharged or reassigned by the Contractor on fifteen (15) days notice from the City. 4. ' COMPENSATION TO CONTRACTOR For each catch basin cleaned by the Contractor, the City shall pay Contractor the rate of $40 per catch basin. For each linear foot of v- ditches cleaned by the Contractor, the City shall pay Contractor the rate of $1.10 per linear foot. Contractor shall submit invoices to City on a monthly basis. City shall pay invoices within thirty (30) days after receipt by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices ". INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 6. , EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 3 0 0 7. HOLD HARMLESS A. Contractor assumes all risk in any way related to the performance of Contract Services. Contractor agrees to indemnify, defend, save and hold harmless City, its elected and appointed boards and commissions, officers, agents, and employees from and against any loss, damages, liability, claims, costs, expenses or damages, including, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from, or in any way related to, the performance of Contract Services required by this Agreement, provided, however, Contractor's obligation in this regard shall not apply in the event of the fraud or willful misconduct by City, its officials, agents, employees or representatives. B. Contractor shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, costs and expenses whatsoever, including reasonable attorneys' fees, which may accrue to any and all persons, or business entities furnishing or supplying work, services, materials, equipment or supplies to Contractor in the performance of services under this Agreement. C. In the event that Contractor and City are sued by a third party for damages caused or allegedly caused by negligent or other wrongful conduct of Contractor, or by a dangerous condition of City's property created by Contractor or existing while the property was under the control of Contractor, Contractor shall not be relieved of its obligation to defend, indemnify, and hold City and its officers, employees and representative harmless, by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the City. B. INSURANCE A. In addition to Contractor's obligation to defend, indemnify, and hold City harmless, Contractor shall obtain and maintain at its own expense during the term of this Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Insurance policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to performing any Contract Services. B. Prior to the commencement of work, Contractor shall provide to City certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements. At the 4 0 0 option of City, Contractor shall provide copies of all policies, providing coverage as required by this Agreement. C. Contractor shall provide the following insurance, with Best's Class A -7 or better carriers: Worker's Compensation and Employers Liability insuring statutory Workers' Compensation limits as required by the California Labor Code and one million dollars ($1,000,000) per accident Employers' Liability; 2. Commercial general liability insurance covering third parry liability risks, including without limitation, contractual liability, in a minimum amount of one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury; and property damage. If the policy contains a general aggregate limit, then the aggregate limit shall not be less than two million dollars ($2;000,000); 3. Commercial auto liability and property insurance covering all owned and rented vehicles of Contractor coverage Code 1 "any auto" with a minimum amount of one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage; D. Endorsements to the policies providing the above insurance shall be obtained by Contractor, adding the following three provisions: Additional Insured: "The City of Newport Beach and its officers, employees, agents, elected officials, and volunteers are covered as additional insured." Notice: "The policy shall not terminate, nor shall it be canceled or the coverage reduced, until thirty (30) days after written notice is given to City." 3. Otherinsurance: "Any other insurance maintained by the City of Newport Beach shall be excess and not contributing with the insurance provided by this policy." E. Contractor shall give to City prompt and timely notice of any claim made or suit instituted arising out of Contractor's performance of this Agreement. Contractor shall also procure and maintain, at its own cost and expense, 0 0 any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and performance of Contract Services. F. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor, a waiver of any right of subrogation, which any such insurer of Contractor may acquire against City by virtue of the payment of any loss under insurance. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 10. RECORDSIREPORTS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. 0 0 D. Contractor shall complete a weekly report indicating work performed and submit this completed report to the City Administrator within two (2) days after the end of each week. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his /her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional services as requested by the Administrator. Additional services, may be billed in accordance with the per square foot unit price proposed by the Contractor Exhibit B. B. City reserves the right to withdraw certain locations from the Scope of Work to be performed by. Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period 7 • • of less than a full one (1) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, consultant, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interest that may foreseeable be materially E7 0 0 affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 -8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Justin's Jetting 4455 Feather River Road Corona, CA 92880 20. TERMINATIONIDEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this or authorized by law, terminate this Agreement by giving written notice of termination. 7 PA J 0 B. This Agreement may be terminated at anytime, without cause by City or Contractor, upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for Contract Services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate landscape or hardscape maintenance standards and /or Contractor fails to satisfactorily perform Contract Services. City shall have the right to return funds withheld until the City Administrator determines that Contract Services are performed as well as required by this Agreement. 21. COST OF LITIGATION If any legal action is necessary to enforce any provision of this Agreement, or for damages by reason for an alleged breach of any provisions of this Agreement, the parties agree that the court with jurisdiction over the action may determine and fix reasonable attorneys' fees and expenses to be paid to the prevailing party. 22. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 23. WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 24. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: LaVonne Harkless, City Clerk APPROVED AS TO FORM: Daniel K. Ohl, Deputy City Attorney f: \meldddgelJuly03\RFP�Contract JustinJet_July03 11 CITY OF NEWPORT BEACH A Municipal Corporation M Contractor 0 Title: Mayor