HomeMy WebLinkAboutC-4015 - On-Call RSA for As-Needed Asphalt Repair ServicesON -CALL REPAIR SERVICES AGREEMENT
WITH HARDY & HARPER, INC.
FOR AS- NEEDED ASPHALT REPAIR SERVICES
�{I THIS ON -CALL REPAIR SERVI. AGREEMENT ( "Agreement ") is made and
entered into as of this [ day of F�kj, 2013 ( "Effective Date ") by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
( "City "), and HARDY & HARPER, INC., a California corporation ("Contractor "), whose
principal place of business is 1312 East Warner Ave, Santa Ana, CA 92705 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 as-
needed asphalt repair 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 Project 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:
I . TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on January 31, 2015, unless terminated earlier as set forth herein.
2. 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;
2,11 .3 The estimated number of hours and cost to complete the Services;
and
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.
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
Rates attached hereto as Exhibit B and incorporated herein by reference. No rate
changes shall be made during the term of this Agreement without the prior written
approval of the City. Contractor's total compensation for Services performed in
accordance with this Agreement, including all reimbursable items, shall not exceed
Sixty Thousand Dollars and 00 /100 ($60,000.00) without written amendment to the
Agreement.
Hardy & Harper, Inc. Page 2
4.2 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.
4.3 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.
4.4 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.
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 Steve Kirschner, Vice
President 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 6hall 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 Department,
Field Maintenance Superintendent, or their designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator or their designee shall represent City in all matters pertaining to the
Services to be rendered pursuant to this Agreement.
Hardy & Harper, Inc. Page 3
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.
7.3 Contractor represents and warrants to City that it has, shall obtain and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
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.
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 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
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,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
Hardy & Harper, Inc. Page 4
(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 a's 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.
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.
Hardy & Harper, Inc. Page 5
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.
�i�(��1li7:IiI3
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
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
Hardy & Harper, Inc. Page 6
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 Contraotor'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
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.
Hardy & Harper, Inc. Page 7
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.
21.2 If subject to the Act, Contractor shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Contractor shall indemnify and hold harmless
City for any and all claims for damages resulting from Contractor's violation of this
Section.
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 Department
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3460
22.2 All notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at:
Attn: Steve Kirschner, Vice President
Hardy & Harper, Inc.
1312 East Warner Ave.
Santa Ana, CA 92705
Phone: (714) 444 -1851
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
Hardy & Harper, Inc. Page 8
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 Tort
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. 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 ( °FLSA ") (29 USCA § 201, et seq.).
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
Hardy & Harper, Inc. _ Page 9
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.
26.1 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 Effect of Contractor's Execution. Execution of this Agreement by
Contractor is a representation that Contractor has visited the Project Site, has become
familiar with the local conditions under which the Work is to be performed, and has
taken into consideration these factors in submitting its Project proposal and Scope of
Work.
26.7 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.
26.8 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.
26.9 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.
Hardy & Harper, Inc. Page 10
26.10 5everability. 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.
26.11 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.
26.12 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]
Hardy & Harper, 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 OFFICE
Date:
B
Y
Aar 2. Harp L
City Attorney
ATTEST: b-lj-j3 Date:
c
By: �l(�,
Nm��—
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California ?}nuTrF
.ipal corporation
Date: 4' / _ . /
CONTRACTOR: Hardy & Harper, Inc., a
Californiaco oration
Date: ,O'i
By: !
Ste irschner
Vice President
Date:
BWein'�'S.
aulino
Vice-PFestder-4 �firy
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Work
Exhibit B — Schedule of Rates
Exhibit C — Insurance Requirements
Hardy & Harper, Inc. Page 12
i
The following is a list of the Services that may be requested by the City during a
typical engagement for as- needed asphalt repair services. Contractor shall provide
asphalt repair Services on an as- needed basis. Repairs shall vary from small patch
repairs to major construction.
• Contractor shall follow all standard procedures in the performance of all duties,
which include, but shall not be limited to, proper techniques and procedures,
traffic control, any related permits, etc. All Work shall conform to City standards
and specifications.
• Final Work shall be approved by the City's Public Works Department as to the
City design specifications and plans on file for the specific location where the
Work is performed.
• Bituminous material shall conform to Section 203 of the Standard Specifications
for Public Works Construction (2009 Edition).
• Asphalt concrete mix for the base course shall be Class B (3/4 ") PG 64 -10.
• Asphalt concrete mix for the finish course shall be Class C2 ( Y2 ") PG 64 -10.
• Repair /replacement of asphalt section shall be minimum V thicker than existing.
• Asphalt base material — % PG 6410
• Asphalt cap material —'h PG 6410
Hardy & Harper, Inc. Page A -1
EXHIBIT B
SCHEDULE OF BILLING RATES
Hardy & Harper, Inc. Page B -1
ATTACHMENT PROPOSAL OFFER FORM
Instru'ons: Proposers may submit pricing information on their own forms but this PrpposalOffer Form must
also be completed, Complete this form, sign, and remit as part of your Proposal as Attachment p,
Individual Labor Rates: Normal Hours (7am- Weekend Hours (lam- Overtime (outside
5pm Man -Fri): 4pm Sat -Sun) regular work
hours /after -hours
emergency)
Minimum Call Out
Time?
4 Hr(s)
- Laborer
(scoicaes equipment) $ jpHr $__L25 __0 0 IHr $ 135.00 /Hr
- Operator,
(IaCludes quip... $_-1; - OO Hr
- Foreman /supervisor
(rncludes eTAFmeot) $ 116. 00 Hr
$ 145.00 /Hr $ 145.00 /Hr
$ 146.00 IHr $ 146.00 /Hr
Minimum lob Cost? Ye 1j, Yes: _
Per Ton Rate:
$ 75.00 ITon Upto 15 tons
$ 70.00 /Tan up to 100 tans
Agave
$ 68.00 ITan ft to( 100 tons
Minimum Per Ton Rate? YAN i if Yes:
1 *✓Miscellaneous cost + 15t mark up
141 Page
e
EXHIBIT C
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.
1.3.1.1 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 LiabilityInsurance. 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:
Hardy & Harper, 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.
1.5.3 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,
Hardy & Harper, 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.
Hardy & Harper, Inc. Page C -3
C-goi
AMENDMENT NO.2
TO
PROFESSIONAL SERVICES AGREEMENT
WITH HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this 14th day of July, 2009, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, (hereinafter referred to as "City ") and HARDY & HARPER, INC.,
a California corporation whose address is 1312 East Warner Avenue., Santa Ana, CA
92705 ( "Contractor "), and is made with reference to the following:
RECITALS
A. On January 22, 2006, CITY and CONTRACTOR entered into an On -Call
Professional Services Agreement, hereinafter referred to as "Agreement,"
for Asphalt Paving Repair Services. This Agreement is scheduled to
expire on July 31, 2006.
B. On July 6, 2006, City and Contractor entered into Amendment No. 1 to
extend the term of the Agreement to June 30, 2009.
C. City desires to enter into this Amendment No. 2 to extend the term of the
Agreement to June 30, 2010.
D. City and Contractor mutually desire to amend Agreement, hereinafter
referred to as "Amendment No. 2," as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
The term of the Agreement shall be extended to June 30, 2010.
2. COMPENSATION
Compensation to the Contractor for services performed pursuant to this
Amendment No. 2 for all work performed from July 1, 2009, to June 30,
2010, shall be based on the attached Schedule of Billing Rates (Exhibit
B).
Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages
including legal holidays and overtime work for each craft or type of workman
needed to execute the work contemplated under the Agreement shall be
paid to all workmen employed on the work to be done according to the
Agreement by the Contractor and any subcontractor. In accordance with
the California Labor Code (Sections 1770 et seq.), the Director of Industrial
Relations has ascertained the general prevailing rate of per diem wages in
the locality in which the work is to be performed for each craft, classification,
or type of workman or mechanic needed to execute the Agreement. A
copy of said determination is available by calling the prevailing wage hotline
number (415) 703 -4774, and requesting one from the Department of
Industrial Relations. The Contractor is required to obtain the wage
determinations from the Department of Industrial Relations and post at the
job site the prevailing rate or per diem wages. It shall be the obligation of
the Contractor or any subcontractor under him /her to comply with all State
of California labor laws, rules and regulations and the parties agree that the
City shall not be liable for any violation thereof.
3. SERVICES TO BE PERFORMED
Contractor shall perform on -call asphalt repairs in various locations
throughout the City pursuant to this Amendment No. 2 and according to
the Request to Extend On -Call Services Agreement dated May 13, 2009,
attached hereto as Exhibit A.
! >�lahI*C3 _vra z01a arid"
Except as expressly modified herein, all other provisions, terms, and
covenants set forth in Agreement shall remain unchanged and shall be in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 on
the date first above written.
APPROVED AS TO FORM:
OFFICE OF CITY ATTORNEY
By:
My tte D. ea p
Assistant City Attorn
ATTEST:
0
Leilani Brown,
City Clerk O� NEWp®�
u � �
�j�pRNtP
CITY OF NEWPORT( BEACH
A Municial Corporation
By:
Edward Selich,
Mayor
CONTRACTO
HARDY & PER, INC.
Title: President
Print Name:_ Fred T. Maas, Jr.
(Financial Oificerj
Title: Treasurer
Print Name: Fred T. Maas, Jr.
Attachment: Exhibit A — Request to Extend On -Call Services Agreement
Exhibit B — Schedule of Billing Rates
1
STATE UC. Number 215952
7312 EAST WARNER AVENUE
SANTA ANA, CA 92705
(714) 444 -7851, FAX (714) 444 -2801
May 13, 2009
City of Newport Beach
Utilities Department
Attn: Cindy Asher
3300 Newport Blvd.
Newport Beach, Ca 92658 -8915
Re: Amendment to Professional, Services Agreement
Dear Ms, ,Asher:
Hardy & Harper,lne. is requesting to extend the Professional Services Agreement
for another year. Our new rate sheet's are attached with effective dates 7/l/09
through 6/30/10 for your approval.
The line items we changed are due to the anticipated increases of prevailing wages
for Construction Laborers, Operating P,ngineers and Concrete Masons which would
go into effect July 1, 2009.
truly, (
Steve Kiirs er
Viee President
Cc: Mike Morgan
File
r
lraa 4tr? ea,ttzaetaz
STATE 0C. vumber 21595;
1312 EAST WARNER AVENUE
SANTA ANA, CA 92705
(714) 444-1851 • TAX /714/444-2801
Hardy & Harper, Inc.
Labor and Equipment Rental Rates
EFFECTIVE 7/1109 THROUGH 6/30110
City of Newport Beach Utilities Department
Foreman Including Pickup
$88.00
$126.00
$164.00
Operator / Screedman
$80.00
$115.00
$150.00
Laborer/ Raker
$70.00
$ 98.00
$127-00
OPERATED EQUIPMENT
RATE
Skip loader
$120.00 per hour
3 -5 Roller
$100.00 per hour
8 Ton Roller
$125.00 per hour
Dump Truck
$100.00 per hour
Water Truck
$95.00 per hour
Saw Truck
$110.00 per hour
Bobcat (w/ Skidsteer)
$125.00 per hour
Bobcat (wl Grinder)
$185.00 per hour
Bobcat (w/ Breaker)
$145.00 per hour
Backhoe
$130.00 per hour
950 Loader
$175.00 per hour
Sweeper
$160.00 per hour
' - 1.1W4
Paving Machine
$165.00 per hour
Pick -Up
$140.00 daily
Crew Truck w/ Tack @ $5.00 per gal.
$300.00 daily
Arrow Board
$100.00 daily
Compressor w/ Jackhammer
$160.00 daily
Berm Machine
$200.00 daily
Concrete Grinders
$160.00 daily
Vib Plate
$100.00 daily
Low Boy Move -Ins
$95,00 per hour
Rental Equipment
Cost + 15% mark -up
Material
Cost + 15% mark -up
Subcontractor
Cost + 15% mark -up
Misc. Supplies
Cost + 15% mark -up
I•
A4a4rV &oae uc
STATC LIC Numbci 215952
1312 EAST WARNER AVENUE
SANTA AN -A, CA 92705
(714) 444 -1851 a M (714) 449»2802
REGULAR HOURS
OT HOURS
$185.00
$276.00
$276.00
$414.00
$368.00
$552.00
$460.00
$690.00
$552.00
$878.00
$644.00
$966.00
$736.00
$1,104.00
$828.00
$1,242.00
$920.00
$1,380.00
*Add $25.00 per hour for use of Grinder
Misc. Supplies.....
. ... Cost +15%
Subcontractors .........
Cost + 15%
Material Cost .......
- -Cost + 15%
Rentals Cost. .._.......
Cost + 15%
Machine... . ...
... $165.00 per hour
Move In .................$600.00
AC, . .... .......... .....
$85.00 per ton (FOB)
AB------ ........
. . $25.00 per ton (FOB)
Concrete... .............
$120.00 per C.Y.
CONTINUED - PAGE 2
(2) man crew wt Equip„
(3) man Crew wl Equip.
(4) man Crew wl Equip.
(5) man Crew w/ Equip.
(6) man Crew w/ Equip.
(7) man Crew wi Equip.
(8) man Crew wl Equip.
(9) man Crew wt Equip.
(10) man Crew w/ Equip.
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 11
July 14, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Utilities Department
Cindy Asher, Administrative Manager
949 - 644 -3010 or casher (ccity.newport- beach.ca,us
SUBJECT: ASPHALT REPAIRS — APPROVAL OF AMENDMENT TO
PROFESSIONAL SERVICES AGREEMENT WITH HARDY & HARPER,
INC.
I�7Xdsl�rrltitil�i Is7�� fLiIi Fl
Approve Amendment No. 2 to Professional Services Agreement with Hardy & Harper,
Inc. for on -call asphalt repair services and authorize the Mayor and City Clerk to
execute Amendment No. 2.
DISCUSSION:
On January 22, 2008, the City Council approved a Professional Services Agreement
with Hardy & Harper, Inc. to provide as needed on -call asphalt repair services. On July
8, 2008, the City Council approved Amendment No. 1 to the Professional Services
Agreement with Hardy & Harper, Inc. and the term was extended to June 30, 2009.
On -call agreements allow staff to retain and quickly access specialized services that are
required for asphalt repairs due to water service leaks, water main breaks, and sewer
lateral and main breaks, at fees that are set for a one year period of time. Staff
recommends extending the term by one year to June 30, 2010.
Hardy & Harper, Inc. has provided a high quality of asphalt paving repair service for the
City on numerous projects over the past seven years. The firm has specialized crews of
"patch dumps." These Crews were developed to act as "total quality," "quick response,"
self- contained vehicles used to service their contracts throughout Southern California.
This service enables staff to get small time sensitive jobs completed on short notice to
keep right -of -ways open. This past year Hardy & Harper, Inc. completed an emergency
asphalt roadway repair at 15th Street and Riverside due to a water main break.
Asphalt Repair On -Call Services — Approval of Amendment
to Professional Services Agreement
July 14, 2009
. Page 2
°V }
The new fees for labor and equipment are either unchanged, or are approximately 3-4%
higher than 2008. Please refer to the attached tables for rate comparison.
Environmental Review:
This action requires no environmental review, as it is not a project pursuant to CEQA.
Funding Availability:
Funding is available in the Maintenance and Repair line item 8160 for Water and
Wastewater Divisions.
Prepared by:
Cindy Asher ministrative Manager
Submitted by:
66o;e_rdoch, tilities Director
Attachments: Amendment No. 2 to Agreement with Hardy & Harper, Inc.
Rate Comparison Tables
AMENDMENT NO.2
TO
PROFESSIONAL SERVICES AGREEMENT
WITH HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this 14th day of July, 2009, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, (hereinafter referred to as "City ") and HARDY & HARPER, INC.,
a California corporation whose address is 1312 East Warner Avenue., Santa Ana, CA
92705 ( "Contractor "), and is made with reference to the following:
RECITALS
A. On January 22, 2008, CITY and CONTRACTOR entered into an On -Cali
Professional Services Agreement, hereinafter referred to as "Agreement,"
for Asphalt Paving Repair Services. This Agreement is scheduled to
expire on July 31, 2008.
B. On July 8, 2008, City and Contractor entered into Amendment No. 1 to
extend the term of the Agreement to June 30, 2009.
C. City desires to enter into this Amendment No. 2 to extend the term of the
Agreement to June 30, 2010.
D. City and Contractor mutually desire to amend Agreement, hereinafter
referred to as "Amendment No. 2," as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
The term of the Agreement shall be extended to June 30, 2010.
2. COMPENSATION
Compensation to the Contractor for services performed pursuant to this
Amendment No. 2 for all work performed from July 1, 2009, to June 30,
2010, shall be based on the attached Schedule of Billing Rates (Exhibit
B).
Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages
including legal holidays and overtime work for each craft or type of workman
needed to execute the work contemplated under the Agreement shall be
3.
paid to all workmen employed on the work to be done according to the
Agreement by the Contractor and any subcontractor. In accordance with
the California Labor Code (Sections 1770 et seq.), the Director of Industrial
Relations has ascertained the general prevailing rate of per diem wages in
the locality in which the work is to be performed for each craft, classification,
or type of workman or mechanic needed to execute the Agreement. A
copy of said determination is available by calling the prevailing wage hotline
number (415) 703 -4774, and requesting one from the Department of
Industrial Relations. The Contractor is required to obtain the wage
determinations from the Department of Industrial Relations and post at the
job site the prevailing rate or per them wages. It shall be the obligation of
the Contractor or any subcontractor under him/her to comply with all State
of California labor laws, rules and regulations and the parties agree that the
City shall not be liable for any violation thereof.
SERVICES TO BE PERFORMED
Contractor shall perform on -call asphalt repairs in various locations
throughout the City pursuant to this Amendment No. 2 and according to
the Request to Extend On -Call Services Agreement dated May 13, 2009,
attached hereto as Exhibit A.
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and
covenants set forth in Agreement shall remain unchanged and shall be in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2 on
the date first above written.
APPROVER AS TO FORM:
OFFICE OF CITY ATTORNEY
By: z6n
My tte . eauch mp
Assistant City Attorney
ATTEST:
Leilani Brown,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
Edward Selich,
Mayor
CONTRACTOR:
HARDY & HARPER, INC.
M
Title: President
Print Name: Fred T. Maas Jr.
By:
(Financial Officer)
Title: Treasurer
Print Name: Fred T Maas Jr.
Attachment: Exhibit A — Request to Extend On -Call Services Agreement
Exhibit B — Schedule of Billing Rates
HARDY & HARPER, INC.
Position
2008 Hourly Rates
2009 Hourly Rates
Hourly Rate
Increase
Foreman Including Pickup
$85
$88
$3
Operator /Screedman
$80
$77
$3
Laborer /Raker
$67
$70
$3
Equipment
2008 Hourly Rates
2009 Hourly Rates
Hourly Rate
Increase
Skip Loader
$120
$120
$0
3 -5 Roller
$95
$100
$5
8 Ton Roller
$125
$125
$0
Dump Truck
$100
$100
$0
Water Truck
$92
$95
$3
Saw Truck
$110
$110
$0
Bobcat (w /Skidsteer)
$125
$125
$0
Bobcat(w /Grinder)
$185
$185
$0
Bobcat(w /Beaker)
$145
$145
$0
Backhoe
$130
$130
$0
950 Loader
$175
$175
$0
Sweeper
$160
$160
$0
Equipment
2008 Hourly Rates
2009 Hourly Rates
Hourly Rate
Increase
Paving Machine
$165
$165
$0
Pick -Up
$140
$140
$0
Crew Truck w /Tack @ $6 per gallon
$300
$300 (Tack $S per gal)
$0
Arrow Board
$100
$100
$0
Compressorw /Jackhammer
$160
$160
$0
Berm Machine
$200
$200
$0
Concrete Grinders
$160
$160
$0
low Boy Move -Ins
$100
$95
-$5
Rental Equipment
Cost +15%mark -up
Cost +15 %mark -up
$0
Material
Cost +15 %mark -up
Cost +15 %mark -up
$0
Subcontractor
Cost +15% mark -up
Cost +15% mark -up
$0
Miscellaneous Supplies
Cast +15% mark -up
Cost +15%mark -up
$0
Crew w /Equipment
2008 Hourly Rates
2009 Hourly Rates
Hourly Rate
Increase
(2) Man Crew w /Equipment
$185
$185
$0
(3) Man Crew w /Equipment
$276
$276
$0
(4) Man Crew w /Equipment
$368
$368
$0
(5) Man Crew w /Equipment
$460
$460
$0
(6) Man Crew w /Equipment
$552
$552
$0
(7) Man Crew w /Equipment
$644
$644
$0
(8) Man Crew w /Equipment
$736
$736
$0
(9) Man Crew w /Equipment
$828
$828
$0
(10) Man Crew w /Equipment
$920
1 $920
$0
Amount Expended 7/2008- 6/2009
908 Celtis Place
Rue Chamonix & Rue Fontaine Bleu
15th & Riverside
Total
$ 2,300.00
$ 4,850.00
$ 3,600.00
$ 10,750.00
• •
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT
WITH HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this 8th day of July, 2008, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, (hereinafter referred to as "City ") and HARDY & HARPER, INC.,
a California corporation whose address is 13112 East Warner Avenue, Santa Ana,
California 90205 ( "Contractor"), and is made with reference to the following:
RECITALS
A. On January 22nd, 2008, CITY and CONTRACTOR entered into an On -Call
Professional Services Agreement, hereinafter referred to as "Agreement",
for Emergency Underground Utility Repairs. This Agreement is scheduled
to expire on July 3161, 2008.
B. City desires to enter into this Amendment No. 1 to extend the term of the
Agreement to June 30th, 2009.
C. City and Contractor mutually desire to amend Agreement, hereinafter
referred to as "Amendment No. 1 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Contractor shall perform on -call asphalt repairs in various locations
throughout the City pursuant to this Amendment No. 1 and according to
the Request to Extend On -Call Services Agreement dated May 29, 2008,
attached hereto as Exhibit A.
2. Compensation to the Contractor for services performed pursuant to this
Amendment No. 1 for all work performed from July 1, 2008, to June 30,
2009, shall be based on the attached Schedule of Billing Rates (Exhibit
By
3. The tern of the Agreement shall be extended to June 30, 2009.
4. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in Agreement shall remain unchanged and shall be in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on
the date first above written.
APPROVED AS TO FORM:
By:
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By: & � L_�_ _10, Z�_ �_
LaVonne Harkless,
City Clerk
y
CITY OF NEWPORT BEACH
A Municipal Corporat'(o
By: Qj I
� k -
Edward Selich,
Mayor
for the City of Newport Beach
Title: President
Print Name: Fred T. Maas, Jr.
By:
(Financial icerjr
Title: Treasurer
Print Name: Fred T. Maas, Jr.
Attachment: Exhibit A - Request to Extend On -Call Services Agreement
Exhibit B - Schedule of Billing Rates
RIMY. Ly, iuvo it :35rm 114-444-idul
L & Haug, Inc. �
STAR UG rvum
1372 EAST WARNER AVENUE
SAWA ANA, CA 92705
1714) 444 -1851 • FAX (714) 4442801
May 29, 2008
Steve 1alyrter
Utilities Diroctair
City of Newport Beach
3300 Newport Blvd.
Newport Beach, Ca. 92658
Re: Professional Service Agreement — Utility Repair Services
Dear Mr. Myrter:
NU. 4111 r. 1
E%VII81T
Hardy & Harptr lnc, is requesting to extend the Professional Service Agreement for
another year to commence on July 1, 2008. New raft sheet(s) are attached.
Est
Stew Kirschner
Vice President
MAY. 1Y. 1HO I is i7YM 114- 444 -1801 N0, 4111 P. 3
Hardy & Harper, Inc. EXHIBIT "B"
Labor and Equipment Rental Rates
City of Newport Beach
OPERATED EQUIPMENT
REGULAR
OVERTIME
$120.00
LABOR
HOURLY RATE
HOURLY RATE
DOUBLETIME
Foreman including Pickup
$85.00
$123.00
$161-00
Operator /Screedman
$77.00
$112.00
$147.00
Laborer / Raker
$67.00
$95.00
$124.00
OPERATED EQUIPMENT
RATE
Skip Loader
$120.00
perhour
3 -5 Roller
$9500
per hour
8 Ton Roller
$125.00
per hour
Dump Truck
$100.00
per hour
Water Truck
$92.00
per hour
Saw Truck
$110.00
perhour
Bobcat (w /Skidsteer)
$125.00
perhour
Bobcat (w /Grinder)
$185.00
per hour
Bobcat (wBeaker)
$145.00
perhour
Backhoe
$130.00
perhour
950 Loader
Sweeper
$160.00
perhour
SUPPORT EQUIPMENT (BARE)
RATE
Paving Machine
$165.00 per hour
Pick -Up
$140.00 daily
Crew Truck w/ Tack @ $6.00 per gallon
$300.00 . daily
Arrow Board
$100.00 daily
Compressor w /Jackhan mer
$160.00 daily
Berm Machine
$200.00 daily
Concrete Grinders
$160.00 daily
Low Boy Move -Ins
$100.00 per hour
Rental Equipment
Material
Cost + 15% mark-up
Subcontractor
Cost 4- 15% mark -up
Miscellaneous Supplies
Cost + 15% mark -up
Cost + 15% mark -up
1 o£3 Revised 05/15/08
mni. v. tvvo i[:)7rm /14'444'TtlUI NU. 4111 Y. 4
*a Add $25.00 Per Hour For Use of Grinder**
Miscellaneous Supplies .............. Cost + 15%
Subcontractors........ _ ................_. Cost + 15%
Material Cost ... ............................ Cost + 15%
Rentals Cost . ............. ...._.......... Cost + 15%
Machine ... ................... _..... _.... ............. $165.00 per hour
Move 1n ..._......_......._. .......... $600.00
AC.--.- .... .... .................._....._._.... $85.00
AB........... .......... ....... ..._..................... $25.00
......................... $120.00 per C.Y.
2 of 3 Revised U5 /15/08
REGULAR
.O'V'EPTBAE
HOURI Y RATE
HOURLY RATE
(2) Man Crew w/Equipment
$185.00
$276.00
(3) Man Crew w/Equipment
$276.00
$414.00
(4) Man Crew w/Equipment
$368.00
$552.00
(5) Man Crew w/Equipment
$460.00
$690.00
(6) Man Crew w/Equipment
$552.00
$878.00
(7) Man Chew w/Equipment
$644.00
$966.00
(8) Man Crew w/Equipment
$736.00
$1,104.00
(9) Man Crew w/Equipment
$828.00
$1,242.00
(10) Man Crew w/Equipment
$920.00
$1,380.00
*a Add $25.00 Per Hour For Use of Grinder**
Miscellaneous Supplies .............. Cost + 15%
Subcontractors........ _ ................_. Cost + 15%
Material Cost ... ............................ Cost + 15%
Rentals Cost . ............. ...._.......... Cost + 15%
Machine ... ................... _..... _.... ............. $165.00 per hour
Move 1n ..._......_......._. .......... $600.00
AC.--.- .... .... .................._....._._.... $85.00
AB........... .......... ....... ..._..................... $25.00
......................... $120.00 per C.Y.
2 of 3 Revised U5 /15/08
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 5
July 8, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Utilities Department
Steve Myrter, Utilities Director
949 - 718 -3400 or smvrter (Dcitv.newt)ort- beach.ca.us
SUBJECT: ASPHALT REPAIRS — APPROVAL OF AMENDMENT NO. 1 TO
PROFESSIONAL SERVICES AGREEMENT WITH HARDY & HARPER,
INC.
RECOMMENDATION:
Approve Amendment No. 1 to Professional Services Agreement with Hardy & Harper,
Inc. for on -call asphalt repair services and authorize the Mayor and City Clerk to
execute the Amendments.
DISCUSSION:
On January 22, 2008, the City Council approved a Professional Services with Hardy &
Harper, Inc. to provide as needed on -call asphalt repair services. This amendment will
lock in prices on a time and materials basis based on the rate sheet shown in Exhibit B
through June 30, 2009.
The scope of work for the on -call professional agreement being amended would include
asphalt repairs and depending on the location may include concrete repairs. The firm is
supported by specialized crews of "patch dumps ". These crews were developed to act
as "total quality', "quick response ", self- contained vehicles used to service their
maintenance contracts throughout Southern California. This service enables staff to
get time sensitive jobs completed on short notice.
Environmental Review:
This action requires no environmental review, as it is not a project pursuant to CEQA.
Asphalt Repair Services - Approval of Amendment No. 1
to Professional On -Call Service Agreement
July 8, 2008
Page 2
Funding Availability:
Funding is available in various Maintenance and Operations Water and Wastewater
accounts. Periodically, a Capital Improvement Account will be utilized, as necessary, to
facilitate project expediency.
Expenditures more than $30,000 for an individual repair project will require a separate
City Council action in accordance with Policy F -14.
Prepared by:
L aka
Cindy Asher
AdministratiVd Manager
Submitted by:
-4=
Steve Myrter
Utilities Director
Attachments: Amendment No. 1 with Hardy & Harper, Inc.
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT
WITH HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this 8th day of July, 2008, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, (hereinafter referred to as "City") and HARDY & HARPER, INC.,
a California corporation whose address is 13112 East Warner Avenue, Santa Ana,
California 90205 ( "Contractor "), and is made with reference to the following:
RECITALS
A. On January 22nd, 2008, CITY and CONTRACTOR entered into an On -Call
Professional Services Agreement, hereinafter referred to as "Agreement',
for Emergency Underground Utility Repairs. This Agreement is scheduled
to expire on July 31st, 2008,
B. City desires to enter into this Amendment No. 1 to extend the term of the
Agreement to June 30th, 2009.
C. City and Contractor mutually desire to amend Agreement, hereinafter
referred to as "Amendment No. 1 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Contractor shall perform on -call asphalt repairs in various locations
throughout the City pursuant to this Amendment No. 1 and according to
the Request to Extend On -Call Services Agreement dated May 29, 2008,
attached hereto as Exhibit A.
2. Compensation to the Contractor for services performed pursuant to this
Amendment No. 1 for all work performed from July 1, 2008, to June 30,
2009, shall be based on the attached Schedule of Billing Rates (Exhibit
B).
3. .. The term of the Agreement shall be extended to June 30, 2009.
4. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in Agreement shall remain unchanged and shall be in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on
the date first above written.
APPROVED AS TO FORM:
By: A °'w" C°'��
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
Edward Selich,
Mayor
for the City of Newport Beach
HARDY & H RPER, INC.
By.
Title: President
Print Name: Fred T. Maas, Jr.
E�. *09K
(Financial Officer)
Title: Treasurer
Print Name: Fred T. Maas, Jr.
Attachment: Exhibit A — Request to Extend On -Call Services Agreement
Exhibit B — Schedule of Billing Rates
MAY. LY. ZVVd 11:JhFM I14- 444-2801
& Harper, Inc.
1312 EAST WARNER AVENUE
SANTA ANA, CA 92705
(714) 444 -1851 • FAX (714) 444.2801
May 29, 2008
Steve Myrter
Utilities Director
City of Newport Beach
3300 Newport Blvd.
Newport Beach, Ca. 92658
Re: Professional Service Agreement — Utility Repair Services
Dear Mr. Myrter:
N0, 4111 P. 2
EXHIBIT "A'
Hardy & Harper hw, is requesting to extend the Professional Service Agreement for
another year to commence on July 1, 2008. New rltte sheets) are attached.
1!4
j 14d ANA
,
mHr. Z1. tuU6 1 j : j 7 r M 114- 444 -Hol N0. 4111 P. 3
Hardy & Harper, Inc. EXHIBIT "B"
Labor and Eauiument Rental. Rates
City of Newport Beach
REGULAR OVERTIME
LABOR
HOURLY RATE
HOURLY RATE
DOUBLETIME
Foreman Including Pickup
$85.00
$123.00
$161-00
Operator / Screedman
$77.00
$112.00
$147.00
Laborer / Raker
$67.00
$95.00
$124.00
OPERATED EQUIPMENT
RATE
Skip Loader
$120.00
per hour
3 -5 Roller
$95.00
per hour
8 Ton Roller
$125.00
per hour
Dump Truck
$100.00
per hour
Water Truck
$92.00
per hour
Saw Truck
$110.00
perhour
Bobcat (w /Skidsteer)
$125.00
per hour
Bobcat (w /Grinder)
$185.00
per hour
Bobcat (w/Beaker)
$145.00
per hour
Backhoe
$130.00
per hour
950 Loader
$175.00
per hour
Sweeper
$160.00
per hour
SUPPORT EQUIPMENT (BARE) RATE
Paving Machine -
Pick -Up
Crew Truck w/ Tack @ $6.00 per gallon
Arrow Board
Compressor w/f ackhammer
Berm Machine
Concrete Grinders
Low Boy Move -Ins
Rental Equipment
Material
Subcontractor
Miscellaneous Supplies
$165.00 per hour
$140.00 daily
$300.00 .daily
$100.00 daily
$160.00 daily
$200.00 daily
$160.00 daily
$100.00 per hour
Cost + 15% mark-up
Cost + 15% mark -up
Cost + 15% mark -up
Cost + 15% mark -up
i of 3 Revised 05/15/08
mni. [7. [VVO IG37rni 114- 444 -zW
NU, 4111 V. 4
REGULAR .O'VERTWE
HOURLY RATE HOURLY RATE
(2) Man Crew w/Equipment
$185.00
$276.00
(3) Man. Crew w/Equipment
$276.00
$414.00
(4) Man. Crew w/Equipment
$368.00
$552.00
(5) Man Crew w/Equipment
$460.00
$690.00
(6) Man Crew w/Equipment
$552.00
$878.00
(7) Man Crew w/Equipment
$644.00
$966.00
(8) Man. Crew w/Equipment
$736.00
$1,104.00
(9) Man Crew w/Equipment
$828.00
$1,242.00
(10) Man Crew w/Equipment
$920.00
$1,380.00
** Add $?S 00 Per Hour For Use of Grinder"
Miscellaneous Supplies .............. Cost + 15%
Subcontractors ......... � . .............
..._. Cost + 15%
Material Cost .... ..........................
Cost + 15%
Rentals Cost .... ...............................
Cost + 15%
Machine.. .................... ... ... ..._ ......
.. ... . ............. $165.00 per hour
Move 1nn. . $600.00
AC........ . ......... .. ......................... ........
$85.00
AB... .. .................... _ ....... _..................... $25.00
Concrete ............. ............................... $120.00 per C.Y.
2 of 3 Revised 05/15/08
0 • 0-Z/a/5—
PROFESSIONAL SERVICES AGREEMENT WITH
HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AGREEMENT is made and entered into as of this 22nd day of January,
2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation
( "City "), and HARDY & HARPER, INC., a California corporation whose address is
13112 East Warner Avenue, Santa Ana, California, 92705 ( "Contractor"'), and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has a need for on -call assistance for asphalt paving services in regards to
City infrastructure.
C. City desires to engage Contractor to perform on -call asphalt paving services in
various locations throughout the City.
D. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Contractor for purposes of Project shall be Steve
Kirschner.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31St day of July, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Contractor shall provide "On -Call" asphalt paving services as described in the
Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Contractor shall provide a letter proposal
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for services requested by the City (hereinafter referred to as the "Letter
Proposal "). The Letter Proposal shall include the following:
(a) A detailed description of the services to be provided;
(b) The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
(c) The estimated number of hours and cost to complete the services;
(d) The time needed to finish the project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Contractor to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Contractor shall not be responsible for delays due
to causes beyond Contractor's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Contractor's control.
3.2 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to- exceed
basis, in accordance with the provisions of this Section and the Schedule of
Billing rates attached hereto as Exhibit "B" and incorporated herein by reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractor's compensation for services performed in
accordance with this Agreement, including all reimbursable items and
subcontractor fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Utilities Department. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by City Council per Council
Policy F -14.
K
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4.1 Contractor shall submit monthly invoices to City describing the work
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and/or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
costs incurred by Contractor:
A. The actual costs of subcontractors for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Steve Kirschner to
be its Project Manager. Contractor shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Contractor, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
5'3
6.
T
8.
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Contractor warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
ADMINISTRATION
This Agreement will be administered by
shall be the Project Administrator and
under this Agreement. The Project
representative shall represent City in all
rendered pursuant to this Agreement.
CITY'S RESPONSIBILITIES
the Utilities Department. Steve Myrter
shall have the authority to act for City
Administrator or his /her authorized
matters pertaining to the services to be
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractor's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Contractor will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Contractor and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
STANDARD OF CARE
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession.
Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
Il
9
8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Contractor shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims'), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship or materials and /or design defects [if the design originated with
Contractor]) or Contractor's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and/or omissions of Contractor,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Contractor.
10. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term
of this Contract: a Labor and Materials Payment Bond in a form acceptable to
the City Attorney. The Labor and Materials Payment Bond shall be issued by an
insurance organization or surety (1) currently authorized by the Insurance
Commissioner to transact business of insurance in the State of California, (2) listed
as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of Best's Kev
Ratino Guide: Property - Casualty.
Contractor shall deliver, concurrently with execution of this Agreement, the Labor
and Materials Payment Bond, a certified copy of the "Certificate of Authority" of
5
• i
the Insurer or Surety issued by the Insurance Commissioner, which authorizes
the Insurer or Surety to transact surety insurance in the State of California.
11. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
12. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Contractor on the Project.
13. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
14. PROGRESS
Contractor is responsible for keeping the Project Administrator and/or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the work, activities performed and planned, and any meetings that
have been scheduled or are desired.
15. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of work. Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Contractor shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
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City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
1. Workers' Compensation Coverage. Contractor shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) days prior to such change. The insurer shall agree to
waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Contractor for City.
2. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount not less than Two Million
Dollars ($2,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
3. Automobile 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.
7
4. Professional Errors and Omissions Insurance. Contractor shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of One Million Dollars
($1,000,000).
D. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
L The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Contractor.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Contractor's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) days written notice has been received
by City.
A. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claim made or suit instituted arising out of or resulting from Contractors
performance under this Agreement.
B. Additional Insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
work.
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16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint-venture.
17. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Contractor. Assignments of any or all rights, duties or obligations of the
Contractor under this Agreement will be permitted only with the express written
consent of City. Contractor shall not subcontract any portion of the work to be
performed under this Agreement without the written authorization of City.
18. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed documents
for other projects and any use of incomplete documents without specific written
authorization from Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Contractor prior notice and has received
from Contractor written consent for such changes.
19. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Contractor
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shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Contractor. By acceptance of CADD data, City agrees to indemnify
Contractor for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file for City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Contractor shall defend and indemnify City, its agents, officers,
representatives and employees against liability, including costs, for infringement
of any United States' letters patent, trademark, or copyright infringement,
including costs, contained in Contractor's drawings and specifications provided
under this Agreement.
22. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
23. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute
with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor
shall not discontinue work as a result of such withholding. Contractor shall have
10
0 0
an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Contractor shall be entitled to receive interest on any
withheld sums at the rate of return that City earned on its investments during the
time period, from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and /or
restoration expense shall be borne by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
26. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractor's violation of this
Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
Steve Myrter
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone: 949 - 644 -3011
Fax: 949- 646 -5204
11
• 0
All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Steve Kirschner
Hardy & Harper, Inc.
1312 East Warner Avenue
Santa Ana, CA 92705
Phone: 714 -444 -1851
Fax: 714 -444 -2801
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provision, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days' prior written notice to Contractor. In the event of
termination under this Section, City shall pay Contractor for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Contractor shall conform to applicable City,
county, state and federal laws, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
12
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31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
37. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either parry by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
13
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By: o" C . ---
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT PEACH
A Muni�al Corporati n
:WA1wA(%rA0VW%
Edward -CT. Selicli
Mayor
for the City of Newport Beach
HAV & HARPER, INC.:
-r
By.
(C rpor to Officer)
Title: Vice President
Print Name: Steve Kirschner
By: L S - U__'
(Financial fficer)
Title: Corp. Secretary
Print Name: Kristen S Paulino
Attachments: On -Call Professional Services Agreement
Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
14
C
DIC.19.2007 3:24PM 114- 444 -280.1
& Harper, inc.
SWE nC Nuabu 216952
1312 FAST WARNE8 AVENUE
SAIWTA ANA, CA 92705
(714) 444 -1957 • FAX (714) 444 -2801
December 7, 2007
To Whom It May Concern:
N0. 1546 P. 3
EXHIBIT "A"
Hardy &Harper, Inc., Engineering &Paving Contractor is proud to acknowledgethat theyear2007
is our 61" year of service to the counties and municipalities, as well as various public entities
iesiding in the greater SOUth%n California area The film maintains a contractor's license in classes
A, C,8, and C -12. Our Contractors license number is 215952.
The oompally is located at 1312 E. Warier Avenue, Santa Ana, California 92705. For 61 years
Hardy & Harper has maintained to"f- the-fine equipment to support the scope of work that is
Performed. Our mechanics maintain all of our own equipment including tricking in which to
transport material. The firm is also supported byspeciatized crews of "patch dumps" These crews
were developed to act as "total quality", "quick respond', self - contained vehicles used to service our
maintenance contracts throughout Southem California. We have been where the steel meets the sod
as far as developing and implementing tools to address performance and production with an
emphasis on quality.
Hardy & Hmper, ine., currently owns several maintenance contracts with response time as a key
issue to the contract. We take great pride in servicing our customers as promisedperthe time frames
and dollar amounts quoted. We have been servicing maWenanm contracts with various
municipalities for several years and have had no complaints. Plesse find attached a list of various
maintenance contracts Mnvutly held by Hardy & Harper Inc.
Through abargaining agreement with the AGC ofSouthern Californiawe have signed Master labor
Agreements with Construction Laborers, Operating Engineers, and Cement Masons. There are
currently Seventy (70} full time field employees at Hardy & Harper, Inc., with an on call list in
communication with our dispatcher. All employees attend an ongoing, state certified, weeklysafety
training program and industry awareness program meeting.
Y
DEC. 14. 2007 3:25PM
• -•
714 - 444 -2801
-NO. 1546 - P. 4 —
The followiw is a brief description of our key representatives. Fred T. Maas Jr. (President,
Treasurer) h';28 years exPerience as General Manager and Fiancial Scmvtary of Hardy & Harper
and is the sole owner ofthe rum. Fred has served as President of the AGC Orange
and is currently a member of the board. Steven M. Kirsohner County Chapter
(Vice PresidentlChiefEstimator)�h+as
28 years with the firm as a senior officer, chief estimator, and coordinator. Daniel T. Maas (CL'O,
Operations Manager, Safety Coordinator)has 11 years a tperience in the industry and is cur=tlythe
administrator of our Safety and Industry Awareness Programs. Kristen Paulino (Office Manager,
SerxObxh has been with the firm for 17 years and oversees all accounting deparhnents- Mike
Morgan (feral Superintendent) has 6 years experience in the industryand is ctareutinvolved in all
maintenance contracts,
meet all of n team and production crew that Hardy & Harper maintains, we can easily
Yo
I
ns
2
JAN. 2.2008 3:14PM
Eli
]444 -2801
ver. [nc,
seta is camber ai
1312 EAST WARNER AVENUE
SAWA ANA, CA 92705
(714) 444 -1851 • FAX (714) 444 -2801
January 2, 2008
Mr. Ed &nV Ms. Cindy Asher
City of Newport Beach
Re: Performance of Work
Dear Mr. Burt,
• N0.1942 P. 2/2
EXHIBIT "All
In reference to the Statement of Qualifications for Maintenance Services Hardy & Harper
submitted, here is a complete scope of work that we provide for The City of Newport Beach
regarding our annual maintenance contract. Prices are good thru 07131108.
Cur scope of work includes.
- .Asphalt repairs
- Concrete repairs
- Installation of street signs
- Paint curbs
- Installation of fence posts
- Clean catch basins
- Clean & repair drain lines & ditches
- W standby for emergency storm repairs and clean up.
- Maintenance underground drainage pipes through out the city
- Clean & repair bus shelters
- Clean* maintain Tight of way
Aerelyj ld have y tr tions please contact Steve Kirschner @ (714)444 -1851.
Stev e Kirschner
Vice President
DEC. 19.2007 3:25PM 114- 444 -1881
• N0. 1546 -'f • 5'"
Hard &t er, Tnc. EXHIBIT T
Y
Labor and E uipment Rental Rates
OPERATED EQUIPMENT
REGULAR
OVERTIME
$115.00
TABOR
HOURLY RATE
HOURLY RATE
DOUBLETIME
Foreman including Pickup
$82.00
$120.00
$158.00
Operator /Screedmau
$74.00
$109.00
$144.00
Laborer / Raker
$64.00
$92.00
$121.00
OPERATED EQUIPMENT
RATE _
Skip Loader
$115.00
per hour
3-5 Roller
$90.00
per hour
8 Ton Roller
$120.00
per hour
Dump Truck
$95.00
perhour
Water Truck
$87.00
per hour
SawTruck
$105.00
per hour
Bobcat(w /Skidsteee)
$120.00
per hour
Bobcat (w /Grinder)
$180.00
per hour
Bobcat (w/Beaker)
$140.00
per hour
Backhoe
$125.00
per hour
950 Loader
$170.00
per ham
Sweeper
$145.00
per hour
SUPPORT EQUIPMENT
RATE
Paving Machine
$165.00 perhour
Pick-Up
$130.00 daily
Crew Truck w/ Tack @ $5.00 pergallon
$300.00 daily
Arrow$oard
$100.00 daily
Compressor w/jackhamrner
$160.00 daily
Berm Machine
$200.00 daily
Concrete Grinders
$160.00 daily
Low BoyMove•Lus
$100.00 daily
Ren quipment
Cost + 15% mark-ul
Material
Cost + 15% mark -ul
Subcontractor
Cost + 15% mark -ul
Miscellaneous Supplies
Cost + 15% mark-ul
I of 2 Revised U7/01/07
DEC.19.2007 3:25PM 714-444-2801
N0. 1546 —P. 6
*K A X25.00 Per Haar For Use ofGrinder"
Miscellaneous Supplies ............ Cost + 15%
Subcontractors ___..._....W_...._._.. Cost+ 15%
Material Costt ..... ..................... .._. Cost + 15%
Rentals Cost ..._.._....._...._.._... Cost + 15%
Machine_.._ ...... ..................... ........ $165.00 per hour
Move In __.._....:._......_..._ .._. $600.00
AC ...... ..... ._... ........................... ... .... $75.00 per ton (FOB)
.............. $20.00 per ton (FOB)
Concrete .............. .. ..._ .._ $115.00 per C.Y.
2 of 2 Revised 07/01/07
REGULAR
OVERTIME
HOURLY RATE
HOURLY RATE
(2) Man Crew w/Eq dpment
$180.00
$269.00
(3) Man Crew w/Equipment
$270.00
$403.00
(4) Man Crew w/Equipment
$360.00
$538.00
(5) Maa Crew w/Equipment
$450.00
$672.00
(6) Man Crew w/Equipment
$540.00
$806.00
(7) Man Creww/Equipment
$630.00
$940.00
(8) Man Crew w/Equipment
$720.00
$1,07100
(9) Man Crew w/Equipment
$810.00
$1,210.00
(10) ManCreww/Equipmmt
$900.00
$1,344.00
*K A X25.00 Per Haar For Use ofGrinder"
Miscellaneous Supplies ............ Cost + 15%
Subcontractors ___..._....W_...._._.. Cost+ 15%
Material Costt ..... ..................... .._. Cost + 15%
Rentals Cost ..._.._....._...._.._... Cost + 15%
Machine_.._ ...... ..................... ........ $165.00 per hour
Move In __.._....:._......_..._ .._. $600.00
AC ...... ..... ._... ........................... ... .... $75.00 per ton (FOB)
.............. $20.00 per ton (FOB)
Concrete .............. .. ..._ .._ $115.00 per C.Y.
2 of 2 Revised 07/01/07
0 0 F.
_ _ * COMMUNICATION RESULT REPORT ( JAN. 9.2008 10:11AM) M
FAX HEADER 1: 714- 444 -2801
FAX HEADER 2: 714- 444 -2801
TRANSMITTED /STORED JAN. 9.2008 10:06AM
FILE MODE OPTION ADDRESS RESULT PAGE
----------------------------------------------------------------------------------------------------
2431 MEMORY TX 19099819385 OK 20/20
----------------------------------------------------------------------------------------------------
REASON FOR ERROR
E -1) FANG UP OR LINE FAIL C 2) 811sV
C 9) NO A RSWCR E -4) NO FACSIMILE CONNCCTION
COMPANY NAME:
REQUES'T'ED BY:
DATE OF .REQUEST:
AGENCY NAME:
& Harper,, Inc.
e Aa4t6,pp
FINAL BOND REQUEST
Hardy & Harper Inc.
Melissa Tem_piin
1 08/0
City of Newport Beach
PROJECT DESCRIPTION.Qp call ag er ement
CATEGORY #:
Contract amount: $ to be determined
COMPLETION TIME: 0 WORDING DAYS
WARRANTY: 1 year after completion
LIQUIDATED DAMAGES: $ 250.00 PER DAY
FORMS: _ ATTACKED MUSE SURETY'S FORM
Additional hiifo
Scope of Work: Asphalt Paving Contractor
Work on hand:
Percent Subcontracted:
SEND TO:
CROSBY INSURANCE, INC., BOND DEPARTMENT
FAX: 909 - 981 -9385
ATTN: ALLISON
0
E
0-405-
• CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
January 22, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Utilities Department
Steve Myrter, Utilities Director
644 -3411 or smyrter city.newport- beach.ca.us
SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS WITH
HARDY & HARPER, INC. AND OLIVER MAHON ASPHALT, INC. FOR
ON -CALL ASPHALT UTILITY REPAIRS
RECOMMENDATION:
Approve Professional Services Agreements with Hardy & Harper, Inc. and Oliver Mahon
• Asphalt, Inc. for on -call asphalt utility repairs, and authorize the Mayor and City Clerk to
execute the Agreements.
DISCUSSION:
On -call agreements allow staff to retain specialized services that may be required on an
emergency basis for asphalt concrete street repairs needed after repair of water and
sewer pipeline breaks, as well as after major maintenance is performed. Staff is
recommending approval of an on -call agreement with Hardy & Harper, Inc. and Oliver
Mahon Asphalt, Inc. to provide "as needed" street repair services. Services will be
performed and billed on a time and material basis, based on the rate sheet shown in
Exhibit B. These Agreements will formalize on -call emergency services with both
companies and lock prices through July 31, 2008 and December 31, 2008 respectively.
1) Hardy & Harper, Inc. asphalt concrete paving contractor has provided street
construction and street repair service to the City for over 10 years. Hardy &
Harper's background includes 61 years of service to counties and municipalities,
as well as various public entities. Staff recommends retaining this company to
perform these on -call services.
2) Oliver Mahon Asphalt, Inc. is also a recognized and well - established asphalt
concrete paving contractor. Oliver Mahon Asphalt has over 30 years experience
• street repair and construction throughout Southern California. Staff recommends
retaining this company to perform these on -call services.
•
Asphalt Concrete Street Repairs
Approval Professional Services Agreements
January 22, 2008
Page 2
Environmental Review:
This action requires no environmental review, as it is not a project pursuant to CEQA.
Funding Availability:
Funding is available in various Maintenance and Operations Water, Wastewater and
General Funds (General Services) accounts. Periodically, a Capital Improvement
Account will be utilized, as necessary, to facilitate project expediency.
Expenditures of more than $30,000 for an individual repair project will require a
separate City Council action in accordance with Policy F -14.
Prepared by:
Cindy Asher, toinistrative Manager
Submitted by:
Stev yrter, Utilitie ector
Attachments: Agreement with Hardy & Harper, Inc.
Agreement with Oliver Mahon Asphalt, Inc.
0
PROFESSIONAL SERVICES AGREEMENT WITH
• HARDY & HARPER, INC. FOR ON -CALL
ASPHALT PAVING REPAIRS
THIS AGREEMENT is made and entered into as of this 22nd day of January,
2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation
( "City "), and HARDY & HARPER, INC., a California corporation whose address is
13112 East Warner Avenue, Santa Ana, California, 92705 ( "Contractor "), and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has a need for on -call assistance for asphalt paving services in regards to
City infrastructure.
C. City desires to engage Contractor to perform on -call asphalt paving services in
various locations throughout the City.
• D. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Contractor for purposes of Project shall be Steve
Kirschner.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 3151 day of July, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
• Contractor shall provide "On -Calf' asphalt paving services as described in the
Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Contractor shall provide a letter proposal
0 0
for services requested by the City (hereinafter referred to as the "Letter
Proposal'). The Letter Proposal shall include the following: •
(a) A detailed description of the services to be provided;
(b) The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
(c) The estimated number of hours and cost to complete the services;
(d) The time needed to finish the project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Contractor to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Contractor shall not be responsible for delays due
to causes beyond Contractor's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Contractor shall submit all requests for extensions of time for performance .
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Contractor's control.
3.2 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to -exceed
basis, in accordance with the provisions of this Section and the Schedule of
Billing rates attached hereto as Exhibit "B" and incorporated herein by reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractor's compensation for services performed in
accordance with this Agreement, including all reimbursable items and
subcontractor fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Utilities Department. Any Letter Proposal that sets forth fees in •
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by City Council per Council
Policy F -14.
2
• 4.1 Contractor shall submit monthly invoices to City describing the work
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
costs incurred by Contractor:
A. The actual costs of subcontractors for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with. the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Steve Kirschner to
be its Project Manager. Contractor shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
• Contractor, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
3
u
0
Contractor warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement. •
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. Steve Myrter
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or his /her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractor's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Contractor will be required to coordinate the
required bid documents with City's reproduction company. All other •
reproduction will be the responsibility of Contractor and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, pen-nits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession. •
Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
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11
8.3 Contractor shall not be responsible for delay, nor shall Contractor be
• responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Contractor shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship or materials and/or design defects [if the design originated with
Contractor)) or Contractor's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and /or omissions of Contractor,
its principals, officers, agents, employees, vendors, suppliers, consultants,
• subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Contractor.
10. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term
of this Contract: a Labor and Materials Payment Bond in a form acceptable to
the City Attorney. The Labor and Materials Payment Bond shall be issued by an
insurance organization or surety (1) currently authorized by the Insurance
Commissioner to transact business of insurance in the State of California, (2) listed
as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of Best's Key
. Rating Guide: Property - Casualty.
Contractor shall deliver, concun-ently with execution of this Agreement, the Labor
and Materials Payment Bond, a certified copy of the "Certificate of Authority" of
5
the Insurer or Surety issued by the Insurance Commissioner, which authorizes
the Insurer or Surety to transact surety insurance in the State of California. •
11. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
12. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Contractor on the Project. •
13. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
14. PROGRESS
Contractor is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the work, activities performed and planned, and any meetings that
have been scheduled or are desired.
15. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of work. Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of insurance. Contractor shall provide certificates of •
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
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City's Risk Manager prior to commencement of performance or issuance
is of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
1. Workers' Compensation Coverage. Contractor shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in, accordance with the laws of
the State of California. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employee's Liability Insurance in accordance with
• the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) days prior to such change. The insurer shall agree to
waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Contractor for City.
2. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount not less than Two Million
Dollars ($2,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
3. Automobile 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.
4. Professional Errors and Omissions Insurance. Contractor shall
maintain professional errors and omissions insurance, which •
covers the services to be performed in connection with this
Agreement in the minimum amount of One Million Dollars
($1,000,000).
D. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Contractor.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Contractor's operations or services
provided to City. Any insurance maintained by City, including any
self - insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as •
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) days written notice has been received
by City.
A. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claim made or suit instituted arising out of or resulting from Contractor's
performance under this Agreement.
B. Additional Insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the •
work.
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• 16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint - venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
17. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Contractor. Assignments of any or all rights, duties or obligations of the
Contractor under this Agreement will be permitted only with the express written
consent of City. Contractor shall not subcontract any portion of the work to be
performed under this Agreement without the written authorization of City.
• 18. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed documents
for other projects .and any use of incomplete documents without speck written
authorization from Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Contractor prior notice and has received
from Contractor written consent for such changes.
• 19. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Contractor
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shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD •
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Contractor. By acceptance of CADD data, City agrees to indemnify
Contractor for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file for City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Contractor shall defend and indemnify City, its agents, officers, •
representatives and employees against liability, including costs, for infringement
of any United States' letters patent, trademark, or copyright infringement,
including costs, contained in Contractor's drawings and specifications provided
under this Agreement.
22. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
23. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute •
with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor
shall not discontinue work as a result of such withholding. Contractor shall have
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an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Contractor shall be entitled to receive interest on any
withheld sums at the rate of return that City earned on its investments during the
time period, from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and /or
restoration expense shall be borne by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
26. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such
• persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractor's violation of this
Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
Steve Myrter
City of Newport Beach
• 3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone: 949 -644 -3011
Fax: 949 - 646 -5204
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29.
30.
•
All notices, demands, requests or approvals from City to Contractor shall be •
addressed to Contractor at:
Steve Kirschner
Hardy & Harper, Inc.
13112 East Warner Avenue
Santa Ana, CA 92705
Phone: 714 -444 -1851
Fax: 714 - 444 -2801
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.
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.
WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach •
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
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• •
• 31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City
Attorney.
34. SEVERABILITY
• If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
•
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
37. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By: , C . y,
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
Edward D. Selich
Mayor
for the City of Newport Beach
HARDY & HARPER, INC.:
By:
(Corporate Officer)
Title:
Print Name:
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(Financial Officer)
Print Name:
Attachments: On -Call Professional Services Agreement
Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
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•
DIC.19.2007 3:20M 714- 444 -2801
i ardy & Harper, InC.
SWE uC Minter 215952
1312 FAST WARNER AVENUE
SANrAANA, 0192705
WI-7141444-1851 - FAX (714) 444 -2801
December 7, 2007
To Whom It May Concern:
N0. 1546 P. 3
EXHIBIT W
Hardy &Harper, Inc., Engineering &Paving Contractor is proud to ackaowledgethat the year 2007
is our 61" year of service to the counties and municipalities, as well as various public entities
iesiding in the greater Southern California area.. The firm maintains a contractor's license in classes
A, G8, and C -12. Our Contractors License number is 215952.
The company is located at 1312 E. Wager Avenue, Santa Ana, California 92705. For 61 years
Hardy & Harper has maintained top -of- the -fine equipment to support the scope of work that is
performed. Our mechanics maintain A of our own equipment including trucking in which to
transport material. The fine is also supported byspedalized crews of "patch dumps ". These crews
were developedto act as "total quality", "goicktesponse", self- cootainedvehictes used to service our
mamtenance contracts throughout Southern California. We have been where thestesl meets the sod
as far as developing and implementing tools W address performance and production with an
emphasis on quality.
Hardy & Harper, Inc., currently owns several maintenance contrwts with response time as a key
issue to the contract. We take greatpride in servicing our customers as promisedperthe time frames
and dollar amounts quoted. We have been servicing maintenance contracts with various
municipalities for several years and have had no complaints, Please find attached a list of various
maintenance contracts currently held by Hardy & Harper Inc.
Through abargaming agreement with theAGC ofSouthern Califonniawehave signed Master Ubor
Agreements with Construction Labours, Operating Engineers, and Cement Masons. There are
currently Seventy (70) full time field employees at Hardy & Harper, Inc., with an on call list in
communication with our dispatcher. All employees attend an ongoing, state certified, weeklysafety
oaring program and industry awareness program meeting.
•
W. 19.20t1 3:25PM 714- 444 -2E01 NC. 1546 — P. 4 —`—
The fallowing is a brief description of our key representatives. Freed T. Maas Jr. (President,
Treasurer) has 28 years experience as General Manager and Financial Secretary of11a & Harper
and is the sole owner ofthe firm. Fred has served as President of the AGC Orange County Chapter
and is currently a member of the board. Steven M. Kirschner (Vice President/Chief Estimator) has
28 years with the fine as a senior officer, chief estunator, and coordinator. Daniel T. Maas (CEO,
Operations Manager, Safety Coordinator) has 11 years experience m the industry and iscurrentlythe
administrator of our Safety and hrdustry Awareness Programs. Kristen Paulin (Office Manager,
Secretary) has been with the firm for 17 years and oversees all accounting departments. Milne
Morgan (General Supermtendent) has 6 years experience m the indusfryand is current involved in all
maintenance contracts.
With the management team and production crew that Hardy & harper maintains, we can easily
meet all of your needs.
•
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JAN. 2.2002 3:14FM #444 -2801 • N0.1942 F. 2/2
a& Harpe r, Inc.
� M4 EXHIBIT "A"
SAV E LIC NUMbef 215952 1312 EAST WARNER AVENUE
SANTA ANA, CA 92705
444 -1881 • FAX (714) 444 -2801
January 2, 2008
Mr. Ed Burt/ Ms. Cindy Asher
City of Newport Beach
Re: Performance of Work
Dear Mr. Burt,
In reference to the Statement of Qualifications for Maintenance Services Hardy & HaTer
submitted, here is a complete scope of work that we provide for The City of Newport Beach
regarding our annual maintenance contract. Prices ate good thru 07/31(08.
Cur scope of work includes:
- Aspbalt repairs
- Concrete repairs
- Installation of street signs
- Paint curbs
- Installation of fewc, posts
- Clem catch basins
- Clean & repair dram lines & ditches
- On standby for emergency storm repairs and clean up.
- Maintenance underground drainage pipes tbrougb out the city
- Clean & repair bus shelters
- Clean & maintain right of way
if ould have y eons please contact Steve Kirschner Q (714)444 -1851.
xncerely,
Stave Kirschner
Vice President
• �NO. 1546�P. 5
DEC. 19. 2(10 3:25PM 114-444 -2801
TO
Lardy &r Harper, Inc. EXHIBIT
Labor and Equipment Rental. Rates
OPERATED EQUIPMENT
RFGIJLAR
OVERTIME
$115.00
TABOR.
HOURLY RATE
HOURLY RATE
DOUBLEnMF
Foreman Including Pickup
$82.00
$120.00
$158.40
Operator /Screedman
$74.00
$109.00
$144.00
Laborer / Raker
$64.00
$92.00
$121.00
OPERATED EQUIPMENT
RATE i
Skip Loader
$115.00
perhour
3 -5 Roller
$90.00
per hour
8 Ton Roller
$120.00
per hour
Dump Track
$95.00
perhour
Water Truck
$87.00
per hour
SawTruck
$105.D0
perhour
Bobcat (w /Sladsteer)
$120.00
perhour
Bobcat (w /G6xler)
$180.00
per hour
Bobcat (w/Beaker),
$140.00
per hour
Backhoe
$M.00
perhour
950 Loader
$170.00
per hour
Sweeper
$145.00
per lour
SUPPORT EQUIPMENT MARE) F)
RATE.
Paving Machine
$165.00 perhour
Pick-Up
$130.00 daily
Crew Truck w/ Tack @ $5.00 pergallon
$300.00 daily
Arrow Board
$100.00 daily
Compressorw/Jackhammer
$160.00 daily
Berm Machine
$200.00 daily
Concrete Grinders
$160.00 daily
Low Boy Move -Ins
$100.00 daily
a �pment
Cost * 15%mark -ul
te
Subcontractor
Cost * 15% mark -u
Miscellaneous Supplies
Cost + 15% mark -ui .
1 of 2 Revised 07 /OV07
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DEC. 0. 2007 3:25PM
10
714-444-2801
0
NO. 1546—P. 6-------
** Add 525-00 Per Hour For Use of'G
Miscellaneous isceumeous Cost + 15%
Cost - 15%
Material CGS[.._._........_......_._. cost + 15%
Rentals Cost__..._.._......__...... C
Machine_.._......._. ...... ��r , l5cya
Move In..._.. ............_....._...__....._. $165.00 M hour
AC......._..._....... $600,0()
............... ............. $7500p-fx ton (FOB)
AB._... ..._........._ ................ . $20.00 per ton (FOB)
Concrete . ............
2 of 2
Revised 07/ol/07
REGULAR
HOURLY RATE
OVERTIME
(2) Man crew w/Eqidpramt
HOURLY RATE
(3) Man Crew w/Equipnent
$180.00
$270.00
$269.00
(4) Man Crew vv!EqWpramt
(5) Man crew W/Equipineur
$360.00
$403.00
$538.00
(6) �Al Crew W/EqWpment
$450.00
$672.00
(7) Man crew W , Egni pment
$540.00
$806.00
(8) Man Crew WMquipmear
$630.00
$720.00
$940.00
(9) Man "Ir Cre w/FqWpment
(10) Man Crew w/Equipni.,
$810,00
$1,075.00
$1,210.00
$900.00
$1,344,00
** Add 525-00 Per Hour For Use of'G
Miscellaneous isceumeous Cost + 15%
Cost - 15%
Material CGS[.._._........_......_._. cost + 15%
Rentals Cost__..._.._......__...... C
Machine_.._......._. ...... ��r , l5cya
Move In..._.. ............_....._...__....._. $165.00 M hour
AC......._..._....... $600,0()
............... ............. $7500p-fx ton (FOB)
AB._... ..._........._ ................ . $20.00 per ton (FOB)
Concrete . ............
2 of 2
Revised 07/ol/07
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PROFESSIONAL SERVICES AGREEMENT WITH
OLIVER MAHON ASPHALT, INC. FOR ON -CALL •
ASPHALT PAVING REPAIRS
THIS AGREEMENT is made and entered into as of this 22nd day of January,
2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation
( "City"), and OLIVER MAHON, INC., a California corporation whose address is 182
Wells Place, Costa Mesa, California, 92627 ( "Contractor"), and is made with reference
to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to cant' on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has a need for on -call assistance for asphalt paving services in regards to
City infrastructure.
C. City desires to engage Contractor to perform on -call asphalt paving services in
various locations throughout the City.
D. Contractor possesses the skill, experience, ability, background, certification and •
knowledge to provide the services described in this Agreement.
E. The principal member of Contractor for purposes of Project shall be Bino
McMann.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 315t day of December, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Contractor shall provide "On -Call' asphalt paving services as described in the •
Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Contractor shall provide a letter proposal
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for services requested by the City (hereinafter referred to as the "Letter
Proposal "). The Letter Proposal shall include the following:
• (a) A detailed description of the services to be provided;
(b) The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
(c) The estimated number of hours and cost to complete the services;
(d) The time needed to finish the project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Contractor to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Contractor shall not be responsible for delays due
to causes beyond Contractor's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
. 3.1 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Contractor's control.
3.2 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to- exceed
basis, in accordance with the provisions of this Section and the Schedule of
Billing rates attached hereto as Exhibit "A" and incorporated herein by reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractor's compensation for services performed in
accordance with this Agreement, including all reimbursable items and
subcontractor fees, shall not exceed the fees identified in the Letter Proposal, as
• approved by the Utilities Department. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by City Council per Council
Policy F -14.
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4.1 Contractor shall submit monthly invoices to City describing the work •
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
casts incurred by Contractor:
A. The actual costs of subcontractors for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically •
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Bino McMann to
be its Project Manager. Contractor shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Contractor, at the sole discretion of City, shall remove from the Project any of its •
personnel assigned to the performance of services upon written request of City.
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Contractor warrants that it will continuously furnish the necessary personnel to
• complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. Steve Myrter
shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator or his/her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractor's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Contractor will be required to coordinate the
• required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Contractor and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession.
• Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
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8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by •
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Contractor shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties') from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, .judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship or materials and /or design defects [if the design originated with
Contractor]) or Contractor's presence or activities conducted on the Project
(including the negligent and/or willful acts, errors and /or omissions of Contractor,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for •
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to ail claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Contractor.
10. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term
of this Contract: a Labor and Materials Payment Bond in a form acceptable to
the City Attorney. The Labor and Materials Payment Bond shall be issued by an
insurance organization or surety (1) currently authorized by the Insurance
Commissioner to transact business of insurance in the State of California, (2) listed
as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of Best's Key
Rating Guide: Property - Casualty.
Contractor shall deliver, concurrently with execution of this Agreement, the Labor
and Materials Payment Bond, a certified copy of the "Certificate of Authority" of
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the Insurer or Surety issued by the Insurance Commissioner, which authorizes
the Insurer or Surety to transact surety insurance in the State of California.
11. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
12. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
• Contractor on the Project.
13. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
14. PROGRESS
Contractor is responsible for keeping the Project Administrator and/or his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the work, activities performed and planned, and any meetings that
have been scheduled or are desired.
15. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of work, Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
• A. 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 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 Employers Liability Insurance in accordance with
the laws of the State of California for all of the subcontractors •
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) days prior to such change. The insurer shall agree to
waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Contractor for City.
2. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount not less than Two Million
Dollars ($2,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
3. Automobile 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.
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4. Professional Errors and Omissions _Insurance. Contractor shall
. maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of One Million Dollars
($1,000,000).
D. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Contractor.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Contractor's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
• iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) days written notice has been received
by City.
A. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claim made or suit instituted arising out of or resulting from Contractor's
performance under this Agreement.
B. Additional Insurance. Contractor shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
• work.
16.
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19.
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PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS •
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
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.
OWNERSHIP OF DOCUMENTS •
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed documents
for other projects and any use of incomplete documents without specific written
authorization from Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Contractor prior notice and has received
from Contractor written consent for such changes.
COMPUTER DELIVERABLES •
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Contractor
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shall not be liable for claims, liabilities or losses arising out of, or connected with
• (a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Contractor. By acceptance of CADD data, City agrees to indemnify
Contractor for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file for City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
• The Contractor shall defend and indemnify City, its agents, officers,
representatives and employees against liability, including costs, for infringement
of any United States' letters patent, .trademark, or copyright infringement,
including costs, contained in Contractor's drawings and specifications provided
under this Agreement.
22. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
23. WITHHOLDINGS
. City may withhold payment of any disputed sums until satisfaction of the dispute
with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor
shall not discontinue work as a result of such withholding. Contractor shall have
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an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Contractor shall be entitled to receive interest on any •
withheld sums at the rate of return that City earned on its investments during the
time period, from the date of withholding of any amounts found to have been
improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and /or
restoration expense shall be bome by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
26. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act'), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially •
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractor's violation of this
Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. Ali notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
Utilities Department
City of Newport Beach
3300 Newport Boulevard •
Newport Beach, CA, 92658 -8915
Phone: 949 -644 -3011
Fax: 949 - 646 -5204
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All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Bino McMann
Oliver Mahon Asphalt, Inc.
182 Wells Place
Costa Mesa, CA 92627
Phone: 949- 548 -6398
28. TERMINATION
In the event that either parry fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provision, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
. seven (7) calendar days' prior written notice to Contractor. In the event of
termination under this Section, City shall pay Contractor for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Contractor shall conform to applicable City,
county, state and federal laws, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
• of the same or a different character.
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31. INTEGRATED CONTRACT •
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of •
this Agreement shall continue in full force and effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
37. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By:
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
Edward D. Selich
Mayor
for the City of Newport Beach
OLIVER MAHON ASPHALT, INC.:
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(Corporate Officer)
Title:
Print Name:
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(Financial Officer)
Print Name:
Attachments: On -Call Professional Services Agreement
Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
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.. Mahon.
"Superior quality at competitive prices since 1962!"
December 19, 2007
Attn: Ed Burt, Operations Mgr.
Utility Department
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
Oliver Mahon Asphalt, (State License #524528), has been paving in and around
Southern California since 1978. It was then when we first occupied our current
location, 182 Wells Place, Costa Mesa, CA. •
Running (3) crews of 6 to 7 men, Oliver Mahon takes projects from small asphalt
patches to major construction. Our minimum cost for a 3 to 4 ton patch job is
$900.00; but we are usually running at least one major project (South Coast
Plaza, Linda Isle, Emerald Bay, Big Canyon) throughout the year. The jobs
occasionally will run into the millions.
We are small enough to tackle smaller jobs on very short notice and big enough
to be competitive on larger projects and maintain quality to ensure repeat
business.
A. 80% of our business is in Orange County. Most of which is in Newport
Beach, Huntington Beach, Costa Mesa and Irvine.
B. Our minimum show and pave is $900.00 (includes weekends). This
includes 3 tons of asphalt that will cover approximately a 10 x 10 at 5
inches.
C. Jobs up to 10 tons at $350 per ton
Jobs up to 20 tons at $210 per ton
Jobs up to 30 tons at $170 per ton
Jobs up to 50 tons at $150 per ton
•
182 WELLS PLACE, COSTA MESA, CA 92627 • PHONE: (949) 548 -6398 • CONTRACTORS LIC. #524528
•
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"Superior quality at competitive prices since 1962!"
(All prices include supervision, equipment and labor)
Note: This does not include traffic control or permits. These prices are
guaranteed until December 2008
Contact for work is Bino McMann, who can be reached at (714) 920 -3736.
Thank you and we look forward to working with you in the future.
Sincerely,
Oliver Mahon Asphalt, Inc.
Bino Mc /M�a�nn
Project Estimator
182 WELLS PLACE, COSTA MESA, CA 92627 • PHONE: (949) 548 -6398 • CONTRACTORS LIC. #524528