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HomeMy WebLinkAboutC-4011 - On-Call RSA for Sidewalk Grinding ServicesON -CALL REPAIR SERVICES AGREEMENT WITH CENTRAL COAST SURFACE GRINDING, INC. FOR SIDEWALK GRINDING SERVICES THIS ON -CALL FPAIR SERV�gGREEMENT ( "Agreement ") is made and his entered into as of t day of .M h, 13 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and CENTRAL COAST SURFACE GRINDING, INC., a Delaware corporation ( "Contractor'), whose principal place of business is 712 Elm Court, Paso Robles, CA 93446 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 on -call repair services for sidewalk grinding services ( "Project "). C. Pursuant to the authority conferred to City as a charter city under California Constitution, Article XI, Section 5, the City hereby exempts this Project from the payment of prevailing wages because the funds used to finance this project are local funds and this Projects is a matter of local concern. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and 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, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on March 31, 2418, unless terminated earlier as set forth herein. 2.1 City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Contractor shall provide "On -Call' services as described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference ( "Services' or "Work"). Upon written request from the Project Administrator (as defined below in Section 6), Contractor shall provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; ! 2.1.3 The estimated number of hours and cost to complete the Services; 2.1.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal 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. The failure by Contractor to strictly adhere to the schedule may result in termination of this Agreement by City. 3.1.1 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party within two (2) calendar days of the occurrence of the delay so that all delays can be addressed. 3.2 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) 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. 33 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 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. No rate changes shall be made during the term of this Agreement without the prior written approval of the City except for the annual adjustment to the rates in proportion to changes in the Consumer Price Index as more particularly described Section 4.2 below. Contractor's total compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Two Hundred Thousand Dollars and 00/100 ($200,000.00) without written amendment to the Agreement. Central Coast Surface Grinding, Inc. Page 2 4.2 Consumer Price Index. Upon the first anniversary of the Effective Date and upon each anniversary of the Effective Date thereafter, the rates to be paid by the City, as set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 2.5% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective April 1, 2014, the index to be used for the numerator is the index for the month of February 2014 and the index to be used for the denominator is April 2013. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (Ail Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the rates in effect immediately preceding such adjustment. The maximum increase to the rates, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 2,5% of the rates in effect immediately preceding such adjustment. 4.3 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person and /or classification of employee who performed the Work, a brief description of the Services performed and /or the specific task from the Scope of Work attached hereto to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. 4.4 City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Work and Schedule of Rates attached hereto. Unless otherwise approved, such costs shall be limited and include nothing more than the actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.5 Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the Project Administrator to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Rates set forth in Exhibit B. Central Coast Surface Grinding, Inc. Page 3 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 Suzi Thek to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any key 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 this 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 Municipal Operations. The Field Maintenance Superintendent, or his /her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7.1 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. 7.2 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 manner commensurate with highest industry standards. 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 and all applicable federal, state and local laws and the industry standard. 73 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. 7.4 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, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. Central Coast Surface Grinding, Inc. Page 4 8.1 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. 8.2 Contractor shall be responsible for any liability imposed by law and for injures 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 the Contractor. 8.3 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any 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). 8.4 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 attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 8.5 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. 8.6 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. Central Coast Surface Grinding, Inc. Page 5 8.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. It is understood that City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees or agents 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. 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 the 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. 14. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. r f . Contractor shall discuss and review all matters relating to policy and Project direction with the Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 12. PROGRESS Contractor is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. ilg�/l f_W, * 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. 14. 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 Central Coast Surface Grinding, Inc. Page 6 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. iF��[IZ�i3��t 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 subcontractors. 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. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the 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. 16, OWNERSHIP OF DOCUMENTS Each and every report, draft, 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. 17. CONFIDENTIALITY All Documents, including drafts, 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. 18. 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 Central Coast Surface Grinding, Inc. Page 7 activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. fifr`iemal it1111 l".[sI9971i![eiy 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 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. 20. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other Contractors in connection with the Project. 21. CONFLICTS OF INTEREST 21.1 The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 212 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. 22. NOTICES 22.1 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, to City by Contractor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Field Maintenance Superintendent Municipal Operations City of Newport Beach 592 Superior Ave. PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3460 Central Coast Surface Grinding, Inc. Page 8 22.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Suzi Thek Central Coast Surface Grinding, Inc. 712 Elm Court Paso Robles, CA 93446 Phone: 805- 331 -2645 f'Wil2140I 1*4U413ir1A1 i Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the 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. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Government Claims Act (Govt. Code §§ 900 et seq.). 24. TERMINATION 24.1 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 24.2 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 thirty (30) 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 materials purchased and Documents created in performance of this Agreement. . 25.1 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 (" FLSK) (29 USCA § 201, et seq.). Central Coast Surface Grinding, Inc. Page 9 25.2 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. 253 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. 25.4 To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorney's 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. 26. STANDARD PROVISIONS 26.1 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. 26.2 Waiver. A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 26.3 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 Contract or implied covenant shall be held to vary the provisions herein. 26.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 26.5 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. 26.6 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 26.7 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. Central Coast Surface Grinding, Inc. Page 10 26.8 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. 26.9 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 26.11 Counterparts. This Agreement may be executed in two 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] Central Coast Surface Grinding, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO i�S�E 'FFICE Date: c3 / � By: z4,, - �— Aaron C. Harp City Attorney ATTEST: rrII Date: `f - djr v o By: 4k - Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California mu}�isyp I corporation Date: LL✓ `�!t l By: `. Keith D. Curry Mayor CONTRACTOR: Central Coast Surface Grinding, Inc., a Delaware corporation Date: B Suzi Thek President/Secretary/Treasurer Date: 13 By: Daniel Smith Sr. Vice President [END OF SIGNATURES] Attachments: Exhibit A – Scope of Work Exhibit B – Schedule of Rates Exhibit C – Insurance Requirements Central Coast Surface Grinding, Inc. Page 12 EXHIBIT A SCOPE OF WORK Contractor shall provide the following Services: • Provide all labor, materials, supervision and equipment necessary for sidewalk grinding Services. + Contractor shall grind raised areas of sidewalk in order to reduce tripping hazards throughout the City of Newport Beach. Completed grinds shall meet a 1" to 1' ratio minimum. • Perform grinding Services as to provide a finished grind that is rectangular in appearance, with a straight back line with minimal stray grinding marks. Adjacent concrete shall remain free of scars or damage. • Perform grinding Services using dry, vertical carbide grinding equipment that will leave a non -slip surface. • Provide Services during work hours of: Monday through Friday, from 7:00 a.m. to 4:00 p.m. There shall be no weekend or holiday work. + Respond to City's requests for Services within 24 hours with a Letter Proposal. • Conduct traffic lane or bike lane closures in accordance with Work Area Traffic Control Handbook (WATCH) standards. • Be responsible for dust control in the course of work, and shall use proper methods and devices for mitigation and containment. Contractor shall properly remove and dispose of all residue from grinding immediately after completion of grinding, and shall properly clean up the project site upon completion of the job. Equipment and Personnel Vehicle 2006 Ford % Tan pickup Operator Suzi Thek- supervision and assist only 2003 Chevy 1 ton flatbed Daniel Smith 1995 Ford 1 ton diesel flatbed Jacob Schriefer 2000 Chevy 1 ton flatbed Nikole Thek 2001 Ford Yz ton pickup Thomas Schriefer 2094_ptility Trailer Thomas Schriefer rr Taylor -Dunn Electric Industrial Cart Thomas Schriefer Central Coast Surface Grinding, Inc. Page A -1 Each truck or car is equipped with the following to accomplish the sidewalk grinding Services: • 2 — gas Scarifiers equipped with a 10.5" rotary drum of barbide bit cutting teeth 1 — Generator — Multi -quip or Predator brand, 6000 -8000 watt 1 — high efficiency 220 volt, 300 cfm vacuum with heap filtration 9 1 — 7" hand grinder with a 7" diamond cup wheel ® Miscellaneous tools and products to house dust and debris ® Safety equipment for the operator, truck and for onsite service Central Coast Surface Grinding, Inc. Page A -2 r' • Price per Location Maximum Length Maximum Height Minimum Grinds Per Visit $16.75 5.01-F 1.25" n1a Central Coast Surface Grinding, Inc. Page B -1 e r 1.1 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. 1.2 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. 1.3 Coverage Requirements. 1.3.1 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. 1.3.1 A Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees and agents. 1.3.2 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 and two million dollars ($2,000,000) completed operations 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) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 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 the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Central Coast Surface Grinding, Inc. Page C -1 1.4.1 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 subcontractors. 1.4.2 Additional Insured Status, All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional 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. 1.4.3 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. 1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 1.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 1.5.1 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 1.5.2 City's Right to Revise Requirements. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor's compensation. 1.53 Right to Review Subcontracts. Contractor agrees that upon request, all contracts 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 contracts will not impose any liability on City, or its employees. 1.5.4 Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 1.5.5 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, Central Coast Surface Grinding, Inc. Page C -2 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, or to the exclusion of other coverage, or a waiver of any type. 1.5.6 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. 1.5.7 City Remedies for Non Compliance If Contractor or any subcontractor 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. 1.5.8 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 Agreement, 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. 1.5.9 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. Central Coast Surface Grinding, Inc. Page C -3 Agenda Item No. 9 April 9, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Director 949 - 644 -3055, mharmon @newportbeachca.gov PREPARED BY: Michael Pisani, Deputy Municipal Operations Director APPROVED: s . TITLE: Approval of On -Call Repair Services Agreement with Central Coast Surface Grinding, Inc. for Sidewalk Grinding Services ABSTRACT: Sidewalks in the City require a variety of work in order to keep them in a safe condition. The City recently completed a Request For Proposal (RFP) process for on -call sidewalk grinding services. Evaluations were completed on proposals submitted by service providers and Central Coast Surface Grinding, Inc. of Paso Robles was the highest rated firm. Staff is requesting approval to enter into an on -call agreement with Central Coast Surface Grinding, Inc. RECOMMENDATION: Staff recommends the approval of the agreement with Central Coast Surface Grinding, Inc. for on -call sidewalk grinding services for a period of five (5) years. FUNDING REQUIREMENTS: Sidewalk grinding services are funded through the Field Maintenance Division budget, which contains sufficient funds for on -call services. Funds for these services will continue to be budgeted in subsequent fiscal years. DISCUSSION The Municipal Operations Department coordinates the maintenance and repair of City sidewalks. A significant portion of sidewalk damage is caused by the root systems of mature trees which can result in raised areas of sidewalk. These areas ultimately become trip and fall hazards to pedestrians. The City's Field Maintenance Division has Approval of On -Call Repair Services Agreement with Central Coast Surface Grinding, Inc. for Sidewalk Grinding Services April 9, 2013 Page 2 established an inspection program which is designed to evaluate over 350 miles of sidewalk throughout the City on a twenty -four (24) month basis. Should an inspector find a raised area, the damage is noted and is placed on a list for remediation. Normally, raised areas between three- eighths (3/8 ") inch and one and one half (1 1/2 ") inches may be ground down. RFP 13 -31 was released on December 28, 2012, and distributed to known firms and posted on the City's public website. A total of four (4) proposals were received. Evaluations were completed by a selected panel and proposals were rated on operational experience, qualifications, demonstrated understanding of the project and operational methodology, organizationallcustomer service structure, and proposed project costs. While Central Coast Surface Grinding, Inc. was the second lowest cost proposal, they were ranked first in overall scoring (see below.) Central Coast Surface Grinding has performed work for the City in an agreement approved by Council in January 2008. Rank Proposer Technical Score (70 points) Cast Ratio Score (30 points) Total Score (100 oints) 1 Central Coast Surface Grindin 61.83 27.03 88.86 2 BPR, Inc. 35.47 30.00 65.47 3 Hardy &Harper, Inc. 42.23 18.11 60.34 4 Orange County Concrete Grinding 28.93 26.63 55.56 The compensation amount for the previous on -call agreement was limited to $30,000.00 per year on a not to exceed basis for a five (5) year term. Over this period, expenditures on sidewalk grinding services have increased, largely due to the increasing age and size of the urban forest. The proposed compensation will be increased to $40,000.00 per year on a not to exceed basis in order to accommodate increased quantities of work and the agreement will maintain a five (5) year term. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act ( °CEQA ") pursuant to Section 15301 (existing facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. Approval of On -Call Repair Services Agreement with Central Coast Surface Grinding, Inc. for Sidewalk Grinding Services April 9, 2013 Page 3 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). NIarK Harmon Director Attachments: A. On -Call Repair Services Agreement with Central Coast Surface Grinding, Inc. for Sidewalk Grinding Services Attachment A On-call repair services agreement with Central Coast Surface Grinding, Inc. for sidewalk grinding services ON -CALL REPAIR SERVICES AGREEMENT WITH CENTRAL COAST SURFACE GRINDING, INC. FOR SIDEWALK GRINDING SERVICES THIS ON -CALL REPAIR SERVICES AGREEMENT ( "Agreement ") is made and entered into as of this _ day of March, 2013 ( "Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City"), and CENTRAL COAST SURFACE GRINDING, INC., a Delaware corporation ( "Contractor "), whose principal place of business is 712 Elm Court, Paso Robles, CA 93446 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 on -call repair services for sidewalk grinding services (`Project "). C. Pursuant to the authority conferred to City as a charter city under California Constitution, Article XI, Section 5, the City hereby exempts this Project from the payment of prevailing wages because the funds used to finance this project are local funds and this Projects is a matter of local concern. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and 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, 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 March 31, 2018, unless terminated earlier as set forth herein. 1 SCOPE OF WORK 2.1 City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Contractor shall provide "On- Call" services as described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). Upon written request from the Project Administrator (as defined below in Section 6), Contractor shall provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; M 2.1.3 The estimated number of hours and cost to complete the Services; 21.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 1 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. The failure by Contractor to strictly adhere to the schedule may result in termination of this Agreement by City. 3.1.1 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party within two (2) calendar days of the occurrence of the delay so that all delays can be addressed. 3.2 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) 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. 3.3 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 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. No rate changes shall be made during the term of this Agreement without the prior written approval of the City except for the annual adjustment to the rates in proportion to changes in the Consumer Price Index as more particularly described Section 4.2 below. Contractors total compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Two Hundred Thousand Dollars and 00 /100 ($200,000.00) without written amendment to the Agreement. Central Coast Surface Grinding, Inc. Page 2 4.2 Consumer Price Index. Upon the first anniversary of the Effective Date and upon each anniversary of the Effective Date thereafter, the rates to be paid by the City, as set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 2.5% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective April 1, 2014, the index to be used for the numerator is the index for the month of February 2014 and the index to be used for the denominator is April 2013. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the rates in effect immediately preceding such adjustment. The maximum increase to the rates, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 2.5% of the rates in effect immediately preceding such adjustment. 4.3 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall Include the name of the person and /or classification of employee who performed the Work, a brief description of the Services performed and /or the specific task from the Scope of Work attached hereto 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 (34) days after approval of the monthly invoice by City staff. 4.4 City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Work and Schedule of Rates attached hereto. Unless otherwise approved, such costs shall be limited and include nothing more than the actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.5 Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the Project Administrator to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Rates set forth in Exhibit B. Central Coast Surface Grinding, Inc. Page 3 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 Suzi Thek to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any key 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 this 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 Municipal Operations. The Field Maintenance Superintendent, or his /her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1 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. 7.2 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 manner commensurate with highest industry standards. 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 and all applicable federal, state and local laws and the industry standard. 73 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. 7.4 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, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. Central Coast Surface Grinding, Inc. Page 4 8. RESPONSIBILITY FOR DAMAGES OR INJURY 8.1 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 Contractors 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. 8.2 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 the Contractor. 8.3 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, attorne)'s fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any 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).. 8A Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 8.5 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. 8.6 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. Central Coast Surface Grinding, Inc. Page 5 8.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. � s s -7 It is understood that City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees or agents 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. 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 the 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. 10. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. 11. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with the Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 12. PROGRESS Contractor is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 13. 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. 14. 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 Central Coast Surface Grinding, Inc. Page 6 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. 15. 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 subcontractors. 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. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the 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. 16. OWNERSHIP OF DOCUMENTS Each and every report, draft, 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. 17. CONFIDENTIALITY All Documents, including drafts, 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. - : -s 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 Central Coast Surface Grinding, Inc, Page 7 activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 19. 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 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. 26. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other Contractors in connection with the Project. 21. CONFLICTS OF INTEREST 21.1 The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 212 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. 22. NOTICES 22.1 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, to City by Contractor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Field Maintenance Superintendent Municipal Operations City of Newport Beach 592 Superior Ave. PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3460 Central Coast Surface Grinding, Inc. Page 8 22.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Suzi Thek Central Coast Surface Grinding, Inc. 712 Elm Court Paso Robles, CA 93446 Phone: 805 -331 -2645 23. NOTICE OF CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the 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. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Government Claims Act (Govt. Code §§ 900 et seq.). 24. TERMINATION 24.1 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 24.2 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 thirty (30) 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 pad. On the effective date of termination, Contractor shall deliver to City all materials purchased and Documents created in performance of this Agreement. 25. LABOR 25.1 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 (" FLSX) (29 USCA § 201, et seq.). Central Coast Surface Grinding, Inc, Page 9 25.2 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. 25.3 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. 25.4 To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorney's 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. 26. STANDARD PROVISIONS 26.1 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. 26.2 Waiver. A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 26.3 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 Contract or implied covenant shall be held to vary the provisions herein. 26.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 26.5 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. 26.6 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a courtt of competent jurisdiction in the County of Orange, State of California 26.7 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. Central Coast Surface Grinding, Inc. Page 10 26.8 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. 26.9 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 26.11 Counterparts. This Agreement may be executed in two 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] Central Coast Surface Grinding, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OF CI Date: R I 1 f f _ - L Aaron b. Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, A California municipal corporation Keith D. Curry Mayor CONTRACTOR: Central Coast Surface Grinding, Inc., a Delaware corporation Date: By: B �-- I_eilani I. Brown Suzi Their' City Clerk PresidenUSecretarytTreasurer Sr. Vice President (END OF SIGNATURES) Attachments: Exhibit A — Scope of Work Exhibit B — Schedule of Rates Exhibit C — Insurance Requirements Central Coast Surface Grinding, Inc. Page 12 • ' • ! " Contractor shall provide the following Services: • Provide all labor, materials, supervision and equipment necessary for sidewalk grinding Services. Contractor shall grind raised areas of sidewalk in order to reduce tripping hazards throughout the City of Newport Beach. Completed grinds shall meet a 1" to 1' ratio minimum. • Perform grinding Services as to provide a finished grind that is rectangular in appearance, with a straight back line with minimal stray grinding marks. Adjacent concrete shall remain free of scars or damage. • Perform grinding Services using dry, vertical carbide grinding equipment that will leave a non -slip surface. • Provide Services during work hours of: Monday through Friday, from 7:00 a.m. to 4:00 p.m. There shall be no weekend or holiday work. Respond to City's requests for Services within 24 hours with a Letter Proposal. • Conduct traffic lane or bike lane closures in accordance with Work Area Traffic Control Handbook (WATCH) standards. • Be responsible for dust control in the course of work, and shall use proper methods and devices for mitigation and containment. Contractor shall properly remove and dispose of all residue from grinding immediately after completion of grinding, and shall properly clean up the project site upon completion of the job. Equipment and Personnel Vehicle Q erator 2008 Ford Y2 Ton pickup Suzi Thek -supervision and assist ani ___ 2003 Chevy 1 ton flatbed Daniel Smith 1995 Ford 1 ton diesel flatbed Jacob Schriefer 2000 Chevy 1 ton flatbed_ Nikole Thek 2001 Ford'' /2 ton pickup Thomas Schriefer _ 20_04 Utility Trailer Thomas Schriefer Taylor -Dunn Electric Industrial Cart Thomas Schriefer_ Central Coast Surface Grinding, Inc. Page A -1 Each truck or car is equipped with the following to accomplish the sidewalk grinding Services: • 2 — gas Scarifiers equipped with a 10.5' rotary drum of barbide bit cutting teeth 1 — Generator — Multi -quip or Predator brand, 6000 -8000 watt ® 1 — high efficiency 220 volt, 300 cfm vacuum with heap filtration • 1 — 7" hand grinder with a 7" diamond cup wheel • Miscellaneous tools and products to house dust and debris • Safety equipment for the operator, truck and for onsite service Central Coast Surface Grinding, Inc. Page A -2 EXHIBIT B SCHEDULE OF BILLING RATES Price per Location Maximum Length Maximum Height Minimum Grinds Per Visit $16.75 5.01-F 1.25" n/a Central Coast Surface Grinding, Inc. Page B -1 1. INSURANCE REQUIREMENTS — MAINTENANCE AND REPAIR 1.1 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. 12 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. 1;3 Coverage Requirements. 1.3.1 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. 1311 Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, officials, employees and agents. 1.3.2 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 and two million dollars ($2,000,000) completed operations 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) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 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 the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions; Central Coast Surface Grinding, Inc. Page C -1 1.4.1 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 subcontractors. 1.4.2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional 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. 1.43 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. 1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 1.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 1.5.1 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 1.5.2 City's, Right to Revise Requirements, The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City and Contractor may renegotiate Contractor's compensation. 1.53 Right to Review Subcontracts. Contractor agrees that upon request, all contracts 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 contracts will not impose any liability on City, or its employees. 1.5.4 Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 1.5.5 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, Central Coast Surface Grinding, Inc. Page C -2 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, or to the exclusion of other coverage, or a waiver of any type. 1.5.6 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. 1.5.7 City Remedies for Non Compliance If Contractor or any subcontractor 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. 1.5.8 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 Agreement, 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. 1.5.9 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. Central Coast Surface Grinding, Inc. Page C -3 • 0 a X11 SERVICE AGREEMENT WITH CENTRAL COAST SURFACE GRINDING, INC. TO PROVIDE ON -CALL SIDEWALK GRINDING SERVICES THIS AGREEMENT is made and entered into as of this �,* day of January, 2008 (the "Commencement Date ") by and between the CITY OF NEWPORT BEACH, a municipal corporation and Charter City ( "City "), and CENTRAL COAST SURFACE GRINDING, INC., a Delaware corporation, whose address is 8335 Del Rio Road, Atascadero, CA 93422 ( "Contractor "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. The City has a need for on -call sidewalk grinding services. C. City desires to engage Contractor to perform on -call sidewalk grinding services in various locations throughout the City on an as- needed basis ( "Project'). D. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal contact for Contractor for purposes of Project shall be Bill Thck. F. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall be for a period of five (5) years, and shall commence on the above written date, and shall terminate on the 31st day of December, 2012, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Contractor shall provide "On -Call" sidewalk grinding services as described in the Scope of Services attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Contractor shall provide a bid proposal for services requested by the City (hereinafter referred to as the "Letter Proposal'). The Letter Proposal shall include the following: (a) A detailed description of the services to be provided; (b) The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; (c) The estimated number of hours and cost to complete the services; (d) The time needed to finish the project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Contractor to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.2 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor for the services on a time and materials not -to- exceed basis, in accordance with the provisions of this Section and the Rate Schedule included in the Scope of Work. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. 2 • i Consultants compensation for services performed accordance with this Agreement shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars ($30,000.00) shall require a separate Professional Services Agreement approved as per Council Policy F -14. 4.1 Contractor shall submit monthly invoices to the City describing the work performed the preceding month. Contractor's bills shall include the name of the person and /or classification of employee who performed the work, location of the work performed, a brief description of the services performed and /or the specific task in the Letter Proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty days after approval of the monthly invoice by City. 4.2 City shall reimburse Contractor only for those costs or expenses specifically approved in the Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Contractor: A. Actual costs specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.3 Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Rates set forth in Exhibit A. 4.4 Annual Rate Adjustment. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Rate to be paid by the City as set forth in Exhibit A shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 2.5% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective January 1, 2009, the index to be used for the numerator is the index for the month of September 2008 and the index to be used for the denominator is September 2007. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor 3 i i Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 2.5% of the Rate in effect immediately preceding such adjustment. 5. PROJECT MANAGER Contractor shall designate a Project Manager, who shall coordinate all phases of the work to be performed pursuant to this Agreement. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Bill Thck to be its Project Manager. Contractor shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Contractor, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. 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 General Services Department. Mark Harmon shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. STANDARD OF CARE 7.1 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 7.2 At its sole cost, the Contractor shall provide all necessary equipment, tools, and labor, etc., as may be necessary to perform the work outlined in the Proposal. All equipment used by the Contractor must be of commercial quality and in good and safe working condition at all times. 4 0 • 7.3 All materials used by Contractor in performing services under this Agreement must be of good quality and fit for the particular purpose for which they will be used. 7.4 Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8. SECURITY The City shall not be responsible for losses of Contractor's supplies, tools, or equipment. As such, Contractor acknowledges its responsibility for providing proper identification and security for such items at its own expense. 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 subconcontractors, 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 the Contractor. 9.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Contract; (2) use of improper materials in performing this Project; including, without limitation, defects in workmanship or materials'and /or design defects or (3) any and all claims asserted by Contractor's subconcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. However, nothing herein shall require Contractor to indemnify City from the sole negligence or willful misconduct of City, ifs officers or employees. 5 9.4 Contractor shall perform all Project 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 Project work. 9.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract 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. 9.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the terms of this Contract, except to the extent provided in Section 10.3 above. 9.7 The rights and obligations set forth in this Section shall survive the termination of this Contract. 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. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the services. 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 the 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 order to ensure the Project proceeds in a manner consistent with City goals and policies. 0 0 • 13. PROGRESS Contractor is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Reguirements. 1. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. 7 • • 2. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. D. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured parties with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party D • i except after thirty (30) days written notice has been received by City. A. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. B. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Contractor. Assignments of any or all rights, duties or obligations of the Contractor under this Agreement will be permitted only with the express written consent of City. Contractor shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor to this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Contractor shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 0 0 0 18. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 19. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Contractor which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Contractor, the additional design, construction and /or restoration expense shall be borne by Contractor. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 20. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other Contractors in connection with the Project. 21. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 22. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: 10 0 0 Mark Harmon General Services Department City of Newport Beach P.O. Box 1768 Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3055 Fax: 949 - 650 -0747 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Bill Thck Project Manager Central Coast Surface Grinding, Inc. 8335 Del Rio Road Atascadero, California 93422 Phone/Fax: (805) 466-3667 23. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 24. COMPLIANCE WITH ALL LAWS Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Contractor shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11 0 0 25. 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. 26. 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. 27. 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. 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. 29. 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. 30. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 31. EQUAL OPPORTUNITY EMPLOYMENT Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 32. 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 12 of the authorship of the Agreement or any other rule of construction which might otherwise apply. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: A*,*-- C Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: By < LaVonne Harkless, City Clerk' r m.7 CITY OF NEWPORT BEACH A MunicjoAl Corporation By: �ayor ty of Newport Beach CENTRAL COAST SURFACE GRINDING, I B (Corp&afe fficer) Print Name: By:C- (Financial Officer) Print Name: Zzr 7/1411 - Attachment: Exhibit A - Scope of Services & Rate Schedule 13 Bidders: 0 0 .. Summaiv of Sidewalk Grinding Bids Central Coast Surface Grinding Channel Islands Sidewalk Grinding Goody's Concrete Grinding Precision Concrete Cutting C PZ:perlocaiion Maximum Length Ma)amum,H . ht Minimum Grinds per Visit $18.97 6 Feet 2 Inches 10 $24.50 5 Feet 2Inches $35.00 5 Feet 11/2 Inches 8 $40.00 C 99/20/2007 11:24 lJ 0854663667 CMG PR0FQSA PAGE 03/03 Grind sidewalks to reduce tripping bazatds throughout the City of Newport $each. CCSG will provide all labor, materials and. equipment for grinding of offs u. Grinding shall be _performed so that the finished grind has a rectangular appearance consisting of straight back line with minimal stMY grinding marls. The adjacent concrete shall remain ftee of scars or damage. Grinding shall be performed using dry, vertical carbide grinding aquipment that will leave a non -slip surface. CCSG shall remove and dispose of all tesidue from grinding immediately after- completion of grinding. CCSG shall minimize the amount of dust created by grinding through the use of vacuums or other devices. Prim S 16.97 per Location Maximum Length. of Grind - 6 Feet Maximum Height of Grind - 2 Inches Minimum Amount of Grinds per Visit - 10 Grinds CCSG currently holds a valid. City of Newport Beach Business LiccOm CCSG has .Worker's Compensation insurance that meets regulatory requirements. -01( 41 JAI'l CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 January 8, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, 949 - 6443055 mharmon@city.newport-beach.ca.us SUBJECT. Agreement with Central Coast Surface Grinding, Inc. for On- Call Sidewalk Grinding Services ISSUES: Should the City execute a Professional Services Agreement with Central Coast Surface Grinding, Inc., of Atascadero for sidewalk grinding services on an on -call basis? RECOMMENDATION: Approve the agreement with Central Coast Surface Grinding, Inc. for sidewalk grinding services on an on -call basis. DISCUSSION: Sidewalks in the City require a variety of work to be kept in a safe condition. Root damage from mature trees is the primary cause of sidewalk damage, which results in raised areas of sidewalk and ultimately, trip and fall hazards to pedestrians. The tasks performed by both City staff and contractors range from ramping raised areas with asphalt, filling in cracks with an epoxy mixture, grinding raised areas of sidewalk, to grinding tree roots and replacing sidewalk panels or adjacent curb and gutter. The General Services Department has an inspection program wherein we endeavor to inspect the nearly 350 miles of sidewalk on a 24 month basis. When the inspector finds a raised area, he notes the damage and the site is placed on a list for remediation. Raised areas from 3/8" to 2" may be ground. Agreement with Central Coast Surface Grinding, Inc. for On -Call Sidewalk Grinding Services January 8, 2008 Page 2 Consequently, staff has been utilizing Central Coast Surface Grinding, Inc., to perform sidewalk grinding services on a regular basis, and we determined it was necessary to enter into an on -call agreement for this service. Prior to developing this draft agreement, staff sought price quotations from Central Coast Surface Grinding and three other companies performing this work. A recap of the bid prices is attached, and the lowest bid was furnished by Central Coast Surface Grinding. Consequently, an agreement is submitted for Council approval for Central Coast Surface Grinding. The term of the agreement is for five years, however, Central Coast Surface Grinding requested a CPI increase clause be included after each 12 month period. Even with this increase built into the pricing, their cost is substantially lower than the other three companies. The City spends $25,000 per year in sidewalk grinding services, and that total is expected to increase as the urban forest grows older. FUNDING: There are adequate funds in Field Maintenance Division budget to fund these services this fiscal year, and funds for these services will continue to be budgeted in subsequent fiscal years. ENVIRONMENTAL REVIEW: This action requires no environmental review, as it is not a project pursuant to CEQA. Prepared by: Submitted <�e Dike Pisani Mark Harmon Deputy General Services Director General Services Director Attachment: (1) Summary of Sidewalk Grinding Price Quotations (2) Professional Services Agreement with Central Coast Surface Grinding, Inc., for On -Call Sidewalk Grinding Services 0 0 Summary of Sidewalk Grinding Bids �gsoaM`' Bidders i Price per location i Maximum Length Maximum Height Minimum Grinds per Visit i Central Coast Surface Grinding $16.97 6 feet I 2 inches 10 Channel Islands Sidewalk Grinding $24.50 5 feet i 2 inches Goody's Concrete Grinding $35.00 5 feet I 1 %z inches 8 Precision Concrete Cutting $40.00 0 0 SERVICE AGREEMENT WITH CENTRAL COAST SURFACE GRINDING, INC. TO PROVIDE ON -CALL SIDEWALK GRINDING SERVICES THIS AGREEMENT is made and entered into as of this day of January, 2008 (the "Commencement Date ") by and between the CITY OF NEWPORT BEACH, a municipal corporation and Charter City ( "City "), and CENTRAL COAST SURFACE GRINDING, INC., a Delaware corporation, whose address is 8335 Del Rio Road, Atascadero, CA 93422 ( "Contractor"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. The City has a need for on -call sidewalk grinding services. C. City desires to engage Contractor to perform on -call sidewalk grinding services in various locations throughout the City on an as- needed basis ('Project"). D. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal contact for Contractor for purposes of Project shall be Bill Thck. F. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: TERM The term of this Agreement shall be for a period of five (5) years, and shall commence on the above written date, and shall terminate on the 31st day of December, 2012, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Contractor shall provide `On -Call" sidewalk grinding services as described in the Scope of Services attached as Exhibit "A." 0 9 Upon verbal or written request from the Project Administrator, Contractor shall provide a bid proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: (a) A detailed description of the services to be provided; (b) The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; (c) The estimated number of hours and cost to complete the services; (d) The time needed to finish the project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Contractor to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other parry so that all delays can be addressed. 3.1 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.2 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor for the services on a time and materials not -to- exceed basis, in accordance with the provisions of this Section and the Rate Schedule included in the Scope of Work. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. E O 0 Consultant's compensation for services performed accordance with this Agreement shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars ($30,000.00) shall require a separate Professional Services Agreement approved as per Council Policy F -14. 4.1 Contractor shall submit monthly invoices to the City describing the work performed the preceding month. Contractor's bills shall include the name of the person and /or classification of employee who performed the work, location of the work performed, a brief description of the services performed and /or the specific task in the Letter Proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty days after approval of the monthly invoice by City. 4.2 City shall reimburse Contractor only for those costs or expenses specifically approved in the Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Contractor: A. Actual costs specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.3 Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Rates set forth in Exhibit A. 4A Annual Rate Adjustment. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Rate to be paid by the City as set forth in Exhibit A shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 2.5% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective January 1, 2009, the index to be used for the numerator is the index for the month of September 2008 and the index to be used for the denominator is September 2007. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor 3 5. 6. 7 0 0 Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 2.5% of the Rate in effect immediately preceding such adjustment. PROJECT MANAGER Contractor shall designate a Project Manager, who shall coordinate all phases of the work to be performed pursuant to this Agreement. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Bill Thck to be its Project Manager. Contractor shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Contractor,. at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Contractor warrants that it will continuously fumish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. ADMINISTRATION This Agreement will be administered by the General Services Department. Mark Harmon shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. STANDARD OF CARE 7.1 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 7.2 At its sole cost, the Contractor shall provide all necessary equipment, tools, and labor, etc., as may be necessary to perform the work outlined in the Proposal. All equipment used by the Contractor must be of commercial quality and in good and safe working condition at all times. 0 0 7.3 All materials used by Contractor in performing services under this Agreement must be of good quality and fit for the particular purpose for which they will be used. 7.4 Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8. SECURITY The City shall not be responsible for losses of Contractor's supplies, tools, or equipment. As such, Contractor acknowledges its responsibility for providing proper identification and security for such items at its own expense. 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 subconcontractors, 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 the Contractor. 9.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Contract; (2) use of improper materials in performing this Project; including, without limitation, defects in workmanship or materials and /or design defects or (3) any and all claims asserted by Contractor's subconcontractors or suppliers on the Project, and shall include reasonable attomeys' fees and all other costs incurred in defending any such claim. However, nothing herein shall require Contractor to indemnify City from the sole negligence or willful misconduct of City, ifs officers or employees. 5 0 0 9.4 Contractor shall perform all Project 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 Project work. 9.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract 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. 9.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the terms of this Contract, except to the extent provided in Section 10.3 above. 9.7 The rights and obligations set forth in this Section shall survive the termination of this Contract. 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. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the services. 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 the 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 order to ensure the Project proceeds in a manner consistent with City goals and policies. A 13. PROGRESS Contractor is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. S. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of Califomia for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. 7 0 0 2. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. D. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured parties with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party 0 0 except after thirty (30) days written notice has been received by City. A. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. B. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Contractor. Assignments of any or all rights, duties or obligations of the Contractor under this Agreement will be permitted only with the express written consent of City. Contractor shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor to this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Contractor shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. E 0 0 18. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 19. ERRORS AND In the event of errors or omissions that are due to the negligence or professional inexperience of Contractor which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Contractor, the additional design, construction and /or restoration expense shall be borne by Contractor. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 20. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other Contractors in connection with the Project. 21. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 22. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: 10 Mark Harmon General Services Department City of Newport Beach P.O. Box 1768 Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3055 Fax: 949 - 650 -0747 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Bill Thck Project Manager Central Coast Surface Grinding, Inc. 8335 Del Rio Road Atascadero, California 93422 Phone/Fax: (805) 466-3667 23. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non-defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 24. COMPLIANCE WITH ALL LAWS Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Contractor shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11 0 0 25. 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. 26. 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. 27. 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. 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. 29. SEVERABILITY If any tern 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. 30. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 31. EQUAL OPPORTUNITY EMPLOYMENT Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 32. INTERPRETATION The terns 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 12 0 0 of the authorship of the Agreement or any other rule of construction which might otherwise apply. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: BE LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Mayor City of Newport Beach CENTRAL COAST SURFACE GRINDING, INC. (Corporate Officer) Print Name: By: (Financial Officer) Print Name: Attachment: Exhibit A — Scope of Services & Rate Schedule 13 0 Scope of Work: PROPOSAL 0 Grind sidewalks to reduce tripping hazards throughout the City of Newport Beach. CCSG will provide all labor, materials and equipment for grinding of offsets. Grinding shall be performed so that the finished grind has a rectangular appearance consisting of straight back line with minimal stray grinding marks. The adjacent concrete shall remain free of scars or damage. Grinding shall be performed using dry, vertical carbide grinding equipment that will leave a non -slip surface. CCSG shall remove and dispose of all residue from grinding immediately after completion of grinding. CCSG shall minimize the amount of dust created by grinding through the use of vacuums or other devices. Price: $16.97 per Location Maximum Length of Grind - 6 feet Maximum Height of Grind - 2 inches Minimum Amount of Grinds per Visit - 10 grinds CCSG currently holds a valid City of Newport Beach Business License. CCSG has Worker's Compensation insurance that meets regulatory requirements.