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C-4153 - M/RSA of Concrete Walls at Cliff Drive Park
From: Craig, Teri Sent: Wednesday, August 19, 2015 11:01 AM To: Mulvey, Jennifer Subject: RG FLEMING CONTRACT #4153 PLEASE MARK THIS CONTRAC AS INACTIVE — IT WAS COMPLETED WITHIN 7 DAYS OF THE CONTRACT, THANKS TERI CRAIG 8 ADMINISTRATIVE SPECIALIST RECREATION & SENIOR SERVICES DEPARTMENT CITY OF NEWPORT REACH 100 CIVIC CENTER DRIVE, BAY E NEWPORT REACH, CA 92660 PEI: 949 - 644 -3153 1 FAX: 949 - 644 -3155 TCRAIG @NEWPORTBEACHCA.GOV to �} CONTRACT WITH R.G. FLEMING, INC. DBA FLEMING CONSTRUCTION SERVICES FOR MAINTENANCE /REPAIR SERVICES U OF CONCRETE WALLS AT CLIFF DRIVE PARK THIS CONTRACT is made and entered into as of this day of February 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City "), and R.G. FLEMING, INC., a California Corporation, doing business as ( "DBA ") FLEMING CONSTRUCTION SERVICES INC, whose principal place of business is 33866 Zarzito Drive, Dana Point, CA 92629 ( "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 is planning to remove the ceramic tiles, and resurface and color stain the upper and lower concrete walls in the playground area at Cliff Drive Park, located at 301 Riverside Drive, in the City of Newport Beach C. City desires to engage Contractor to perform the repair work to the upper and lower concrete walls at Cliff Drive Park ( "Project "). Contractor has agreed to perform the Project over a seven (7) consecutive working day period, commencing upon notice from the Project Administrator. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SCOPE OF WORK Contractor shall perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 2. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Contractor shall complete the Work within the time set forth in this Section. The failure by Contractor to meet this deadline shall result in the termination of this Agreement by City and assessment of damages as outlined in Section 2.1. All work shall be completed within seven (7) days of notice to commence by Project Administrator. 2.1 The parties agree that it is extremely difficult and impractical to determine and fix the actual damages that City will sustain should the Contractor fail to complete the Project within the time allowed. Should Contractor fail to complete the work called for in this Agreement on the date outlined above, Contractor agrees to the deduction of liquidated damages in the sum of Two Hundred and Fifty Dollars ($250.00) for each calendar day beyond the date scheduled for completion provided in Section 2 of this Agreement assuming that the Contractor has access to the space on upon notice of commencement by the_ Project Administrator. Execution of this Agreement shall constitute agreement by the City and Contractor that Two Hundred and Fifty Dollars ($250.00) per calendar day is the minimum value of the costs and actual damage caused by the failure of the Contractor to complete the work within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty, and may be deducted from payments due the Contractor if such delay occurs. 3. COMPENSATION As full compensation for the performance and completion of the Project as required by the Scope of Work, City shall pay to Contractor and Contractor accepts as full payment the sum of Twelve Thousand Five Hundred and Seventy Five Dollars and 00 /100 ($12,575.00). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. City shall pay Contractor no later than thirty (30) days after approval of the final invoice by City staff. 4. ADMINISTRATION This Agreement will be administered by the Recreation & Senior Services Department. Matt Dingwall shall be the Project Administrator and.shall have the authority to act for City under this Agreement. The Project Administrator or P his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 5. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 5.1 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 unless approved in advance by the City Administrator. 5.2 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 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. 6. RESPONSIBILITY FOR DAMAGES OR INJURY 6.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subconcontractors, or its workers, or anyone employed by either of them. 6.2 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. 6.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement; (2) use of improper materials in performing this Project including, without limitation, defects in workmanship or materials and /or design defects; and /or (3) any and all claims asserted by Contractor's subconcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. However, nothing herein shall - require Contractor to indemnify City from the sole negligence or willful misconduct of City, ifs officers or employees. K? 6.4 Contractor shall perform all Project work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Project work. 6.5 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. 6.6 Nothing in this section shall be construed as authorizing any award of attorneys fees in any action to enforce the terms of this Agreement, except to the extent provided in Section 6.3 above. 6.7 The rights and obligations set forth in this Section shall survive the termination of this Contract. 7. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 8. 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. 9. 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 or performance of any work. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. _. n 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. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employers Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) 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. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. 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. E. 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) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. 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 Contract. G. 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. 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 the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Agreement and in the form attached hereto as Exhibit B which is incorporated herein by this reference; and a Faithful Performance Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Agreement in the form attached hereto as Exhibits C which is incorporated herein by this reference. 0 The Labor and Materials Payment Bond and Faithful Performance 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. The Contractor shall deliver, concurrently with execution of this Agreement, the Labor and Materials Payment Bond and Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the Sate of California. 11. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the work outlined in the Scope of Services provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Contract shall create any contractual relationship between City and 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. 12. 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 Contract. 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. 13. 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 Contract, 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 forimmediate 7 termination of this Contract by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 14. NOTICES All notices, demands, requests or approvals 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: Matt Dingwall Recreation & Senior Services Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA, 92660 Phone: 949 - 644 -3152 Fax: 949 - 644 -3155 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Richard Fleming R.G. Fleming, Inc., dba Fleming Construction Services 33866 Zarzito Drive. Dana Point, CA 92629 Phone: (949) 661 -4961 Fax: (949) 661 -6495 15. 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 provisions, 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 0 Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Agreement. 16. 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. 17. 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. 18. INTEGRATED AGREEMENT 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. 19. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services, the terms of this Agreement shall govern. 20. 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. 21. 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. 22. 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. 23. INTERPRETATION 7 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By: %(,tom „ Leilani Brown City Clerk `._ PO R1A"i CITY OF NEWPORT BEACH, A Municipal Corporation By: y Laura Detweiler, Director Recreation & Senior Svcs Department R.G. Fleming, Inc., dba Fleming Construction Services By: Name: Title: ��/PCA17_ Name: Title: Attachments: Exhibit A - Labor and Materials Payment Bond Exhibit B — Faithful Performance Bond Exhibit C - Scope of Services/ Rates 10 FEB -16 -2009 02:53P FROM: 70:19168565020 P:7/8 CITY OF NEWPORT BEACH BOND NO. 70667364 LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to R.G. FLEMING, INC. hereinafter designated as the "Principal ' a contract for the REPAIR WORK FOR THE UPPER AND LOWER CONCRETE WALLS IN THE PLAYGROUND AT CLIFF DRIVE PARK located at 301 Riverside Dr., in the City of Newport Beach, in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Bead, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terns thereof require the furnishing of a bond, providing that if Principal or any of Principars subcontractors, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work agreed to be done, or for any work or labor done thereon of arty kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, Western Surety Company duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety') are held firmly bound unto the City of Newport Beach, in the sum of ( $ 12, 575.00 " DOLLAR AMOUNT) lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by the City of Newport Reach under the terms of the Contract; for which payment well and tidy to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH. that if the Principal or the Principars subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, than the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorneys fee, to be fixed by the Court as required by the provisions of Section 3250 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to fide claims under Section 3181 of the California Cavil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as required by aril in accordance with the provisions of Sections 3247 et. seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such char g% extension of time, alterations or additions to the terns of the Contract or to the work or to the specifications. FEB -16 -2009 02:54P FROM: 70:19168565020 P:818 In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the 18th day of February , 2009. Richard Fleming Name of Contractor (Principal) Western Surety Company Name of Surety 101 South Phillips Avenue Sioux Falla, SD 57117 Address of Surety 8nn_1z1-6053 Telephone Agent Signature Cynthia Ann Shaw Print Name and Title Attorney -In -Fact �SURETyL, O 3 �c SO S@ UTH OA�`O NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 1 NCT'ARY CERTWCATE 18 ATTACHED 2/2 s /os 14 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of CIP10h cit On fEB 2-5- 1�, '?oo4i before me, 'Up NX E L ? - CP1g fi ft, NP714py p ✓81tze Date Here Insert Name and Tftfe of the officer ' personally appeared T–yCaAlZb Fccw�_n15 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose nameH is/" subscribed to the within instrument and acknowledged to me that he%He 0eey executed the same in his /herMeir authorized capacity(iee�,- and that by hisH3efll a signature(s)-on the instrument the person(*,, or the entity upon behalf of DANIEL J. cAsaAI t which the person("eted, executed the instrument. Commission * 1713650 Notary ublic - California '1 certify under PENALTY OF PERJURY under the laws Orange County of the State of California that the foregoing paragraph is Cami. Decst 1010 true and correct. WITNESS my hand and official seal. Signature! w", Place Notary Seal Above nature of Notary Public BIZ; "L57,�1 �� Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual U Individual ❑ Corporate Officer —Title(s): U Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General _ ❑ Partner — ❑ Limited ❑ General _ ❑ Attorney in Fact ❑ Attorney in Fact ❑ Trustee Top of thumb here ❑ Trustee iop of Numb here ❑ Guardian or Conservator Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: I I Signer Is Representing ®2007 National Notary Association, 9350 De Soto Ave., P.O. Box 2402- Chatsworth. CA 91313- 2402 -w .NabcnalNOtaryorg Rem 9530] Reorder: Call Tdl -Free 1- 800. 5]6.682] CNA 2/18/2009 9:08 AM PACE 3/005 Fax Server ❑ Acknowledgment of Principal © Acknowledgment of Surety (Attorney -in -Fact) STATE OF CALIFORNIA COUNTY OF Sacramento 1 ee tiU tip, On Z —'c) 1 before me date here insert name end title of the officer personally appeared Cynthia Ann Shaw neme(s) of 81¢oa*) who proved to me on the basis of satisfactory evidence to be the person(s) whose names) islare subscribed to the within instrument and acknowledged to me that helshe/they executed the same in his/her/their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the Person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. J � SARAH M. MARRIELLI WITNESS my ha and o8icial aeal�- (Q CDMM.E 1812203 CEx TO Couen Signature (Sea]) Mr Comm. one. Exp. $EP. 5, 2012 � (The balance of this page Is Intentionally left blank) t oMan curdy Company Form 10004 -UN 0 CNA 2/18/2009 9:08 AM PAGE 4/005 Fax Server "+estenl Surety CDrnpany POWER OF ATTORNEY - CERTIFIED COPY Bond No. 70667364 Know All Man By Thane Presenss, that WESTERN UUPEPY COMPANY, a corporation duly organized and existing under the laws of the State of South Dakota, and having its principal office in Sioux Falls, South Dakota (the 'Cempany" ), does by these presence take, constitute and appoint Cynthia Ann Shaw its true and lawful attorayW -m -fact, with full powtr and authority hereby conferred, to execute, acknowledge and deliver for and on its behalf nee Surety, tondo for: Principal: R. G. Fleming, Inc. Obligee: City of Newport Beach Amount: $500,000.00 and to bind the Company thereby as fully and to the same extent as if each boada were signed by the Senior Vice President, Heeled with the corporate Beal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the avid attorneys )winfect may do within the above stated limitations. Said appointment is made under and by authority of the following bylaw of Wastan Surety Company which r®aim in full force and effect. "Section 7. All brads, policies, undertakings, Powers of Attorney a other obligations of the cmporatien shad be executed in the corporate-me of the Company by the President, Secretary, any Assistant B=etuy, Treasurer, w any Pena President w by snob other officers as the Board of Directors may authurizu. The Presidomt my Vice President, Secretary, nap Assistant Secretary, cr the 1Yearmer may appoint Attorneys in Fact or agema who shall have authority to issue bonds, policies, er undertakings in the name of the Company. The corporate seal is not necessary for the validity of wry bonds, policies, undertakings, Ponsere of Attorney or oil= obligations of the corporation The signature of any each officer and the corporate Beal maybe printed by faarlurile." All authority hereby conferred shall expire and terminate, without notice, unless wed before midnight of June 25 " 2009 , but until such time shall be irrevocable and in full foma and effect. In Witneas Whereof Western Surety Company has caused these presents to be signed by its Senior Vice President, Paul T. Brufat, and its corgpyijipMA to be affixed this 18th day of February 1 2009 cm "`t WESS U RE COMPANY �= Paid T. BruflalfBonior Vice President ST A COUN as On tbis 18th day of February in the year 2009 , bef=em%anotmpublin,pmanAyappeand Paul T. Beufat, who being to me, duly sworn, adoowledged that he signed the above Power of Attorney as the aforesaid officer of WESTERN SUF= COMPANY and acknowledged said instrument to be the voluntary act and dead of of and corporation. � D. KRELL i NOTARY PIIR[C QOIIf110gKOTA Votary Public - South Dakota iYM.YMYM4h4N \NMMU My Commlnslon Erplres November 30, 2012 I the undersigned o&cer of Wast ms Surety Company, a stock corporation of the State of South Dakota, do hereby certify that the attached Power of Attorney is in full force and afoot and is urevocalde, and forthernaere, that Section 7 of the bylaws of the Company as set ferthin the Power of Attorney is now, in force. In testimony whereof I have hereunto set my hand and seal of Waster= Surety Company this lath day of February 2009 WEST R SURE COMPANY Paul T. Beni Vice President FEB -16 -2009 02:53P FROM: TO:19168565020 P:5'8 CITY OF NEWPORT BEACH BOND NO. 70667364 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 377.00 being at the rate of $ 3 0 . o o thousand of the Contract price. WHEREAS, the City of Newport Beach. State of California, has awarded to R.G. FLEMING, INC. hereinafter designated as the "Principal," a contract for the Cliff Drive Park Wall Repair located at 301 Riverside Drin the City of in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract NOW, THEREFORE, we, the Principal, and Western Surety _Company duly authorized to transact business under the laws of the State of California as Surety (hereinafter °Surety'), are held and firmly bound unto the City of Newport Beach, in the sum of (' _- $ 12, 575.00 ) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators. successors, or assigns, jointly and severally, firmly by #law present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will %W-if rlly perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Perfomance Bond, there shall be included Costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of firm, alterations or additions of the Contract or to the work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by the City. FEB -16 -2009 02:53P FROM: TO:19168565020 P:6�8 In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the 18 t day of February , 200. , Richard Fleming Name of Contractor (Principal) weatprn Surety Company Name of Surety 101 South Phillips Avenue Sioux Falls, SD 57117 Address of Surety 800 - 331 -6053 Telephone AuthoUed Agent Signature v 1 �pBPORATf Cynthia Ann Shaw SEAL Print Name and Title , Attorney -In -Fact NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 1 ]X WrARY CERTNWATE M ATTACHED 2 /fin Y 12 Q;9648 . � 48 -, ,Q 1111 env.a11 State of California County of d R-A Nfrt On Ji'` L�fFn1T��� J . (N-�9z /�1on4i�7 PJI3�rc g. Z, before me, Dais Hare Insert Name and Tills of the Officer personally appeared C f AA rry t ?? Names) of signer(s) DANtrI J. C"M Commhston ! 171 5660 Notary Public . Confomla Orange County Canm, DecSl ZO10 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/slieAhey-executed the same in his/ker/theii authorized capacity(ies; and that by hisAwfAheir-signature(s) on the instrument the person(s); or the entity upon behalf of which the person(s)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my haOancl official seal. Signature— Place Notary Seal Above �ignatu a of Nolary Pubic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signers) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): — n Partner — ❑ Limited ❑ General n Attorney in Fact n Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER 0 Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT'. OF SIGNER 0 - -„ <,.c., -.ei -s v y <e:.e-- • <-y,y -ye.. e, -- •<ey,.cre�.�u,v.- y,- .. <.v: ece> -� - - --'•a . <e`.<-`;<-y <e� <-yey, ..y .: al: CNA 2/18/2009 9:08 AM PAGE 3/005 Fax Server ❑ Acknowledgment of Principal ® Acknowledgment of Surety (Attorney -in -Fact) STATE OF CALIFORNIA COUNTY OF Sacramento On Z — t O nt \ before me, 5o_cc•�h '\ �1 \Olt' `t� Q-�\ \ /VQU�J date hors insert name and title of the officer penwnally appeared Cynthia Ann Shaw name(e) of Higm- e) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in histherhheir authorized capacity(ies), and that by bia/her/their aignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. SARAH M. MARINELLI C. UM t9t22A3 x y xmumml 181229 Signature (Seal) suswexco Ceusn Mr Comm. Exp. SE7� (Tice balance of this page Is intentionally left blanlL) WUWn SUr* Compmy Fwm 1900440M a CNA 2/18/2009 9:08 AM PAGE 4/005 Fax Server vLastm$urety CDrnpany POWER OF ATTORNEY - CERTIFIED COPY Bond No. 70667364 %now All Men By Thus Presents, that WESTERN SURETY COhVANY, a corporation duly organized end existing under the lawn of the State of South Dakota, and having its prwdpd office in Sioux Falls, South Dakota (the - Comparty7, does by these presents make, mastitute and appoint Cynthia Ann Shaw its true and lawfu) attortuy(t )-in -fact, with full pcwor and authority hereby maferred, to execute, acknowledge and deliver for and on its behalf as Surety, bonds for: Principal: R. G. Fleming, Inc. Obligee City of Newport Beach Amount: $500,000.00 and to bind the Company thereby n hilly and to the mcn, extent as if such bonds were signed by the Sarior Vice President, sealed with the corporate weal of the Company and duly attested by its Suwr"ary, hereby ratibmg and mdumng all that the said attoraoy(s)- intact may do within the above stated limitations. Said appointment is made under and by authority of the Mowing bylaw of Western Surety Company which remains in full force and effect. "Section 7. All bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation shall be eaecvtsd in the corporate name of the Compaq by the President, Secretary, any Assistant Secretary, Treuunr, n any Vim Presidant or by surf other of6cors m the Bond of Directors may emtboriae. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint AUcrneya in Fact or asento who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such ofEuer and the corporate seal may be primed by fiucdmile.- All authority hereby conferred dab expire and terminate, without notice, unless need before midnight of June 25 , 2009 , but until sub time "I be irrevocable and in full fore and mi'mt. In Whams Whereof, Western Surety Company has caused these presents to be signed by its Senior Vim President, Paul T. BruOat, to .R"M_kl to be affixed this 18th day of February 2009 SE A%e WEST R SURE COMPANY r�T Pad T. Brufia^nior Vice Presider ST aA CO 3 Be On this 18th day of ---February-, in the year 2009 , beforeem, a rotary public, personally appeared Paul T. Rmflat, who being to me duly swum, ardmowledged that he signed the above Poway of Attorney s, the aforesaid officer of WESTERN SURETY COMPANY and acknowledged said inetrnmcnt to be the Vuluutary act and deed of said corporation. t� D. KULL� MOOay wlavw f � Notary Falk - South Dakota sours NM�M�►MMYM�MMMY � My Commission Fxphes November 30, 2012 I the undersigned officer of Waster Surety Company, a stock corporation of the State of South Dakota, do hereby certify that the attasbcd Power of Attorney is in full face and effort and is irrevocable, and furthermore, that Section 7 of the bylaws of the Company a art forth in the Power of Attorney is now in forts. In teatimo� wheeeo� I have hereunto net uW land sad sad of Western Surety Company this 18th day of February 2009 . Four FSX6.9- 00e WEST R SU V COMPANY T Paul T. Bmft.�= Vice Pruidant .TA' - I R :ua'_ 03: 15R FRUPI: TO:6443155 P: 113 10 dd& FLEMING CONSTRUCTION SERVICES MATT DINGWALL CITY OF NEWPORT BEACH RECREATION AND SENIOR SERVICES DEPARTMENT 3300 NEWPORT BLVD NEWPORT BEACH, CA 82883 subject: RIVERSIDE PARK WALL REPAIRS Job No: 11(20/08 PRICE 2M2TATION Enclosed is Fleming Construction Services revised cost proposal for the work in repairing the the work applied to the concrete walls at Rlverside Park. The revised pricing includes both upper and lower wall portions and includes color staining to keep the 'wave' theme. The proposed cost is Twelve Thousand Five Hundred Seventy Five dollars ($12,575.00) and should take up to five to seven days to complete. The proposed price does not include city permits, plan check fees or processing but does include cost for payment and performance bonds. Thank you again for allowing Fleming construction Services to bid this project. IF you have any questions regarding this proposal, please call me at 94910785577. Thank you for the opportunity to be of service. SINCE ,Y, L / RICH FLE G, RESIDENT FLEMING CONSTRUCTION SERVICES 33866 Zarzito Drive Dana Point, CA 92629 9,49/661-4961 Fax 949/ 6615495 LICENSE #601073 TR' .- 1C- ELEMING CONSTRUCTION SERVICES LIC.0 mm CITY OF NEWPORT BEACH KIVEKSIVt PARK WALL REPAIRS NEWPORT BEACH CA 92683 DATE: 11120!08 HI.E: PWANFERSIDERt JDe •: AREA: I &F. I revt%fo f m: 8MI/07 REPAIRS AT TILED CONCRETE WALLS Pepe r a- :2/3 BODE BID TOTAL HARD GOSH REMOVE TILE, GRIND SUBSURFACE, STAIN AND SEAL CONCRETE WALL $9,850 AT UPPER AND LOWER PLAYGROUND AREA WALLS Process is to remove tile, grind surface, apply a topical penetrating water stop. Finish With a coating of mice ernerrts for decorative finish, then stain and seal with a water based seal to hopefully allow moisture transfer. Waterproofing is a gamble at this point, without property removing compacted soil behind wall to apply a waterproof system, we are just ban"id fixing this situation. A front applied system may hold for a while. No warranty time limit. Equipment to minimize dust and odors will be used when possible, but since this is open air there - is no way to contain all dust and odors, Playground will need to be closed during the repair process. Water and power to be supplied by City of Newport Beach. NOTE: JOB IS BID AS NON - PREVAILING WAGE. DUST AND DAMAGE TO ADJACENT LANDSCAPE MATERIALS IS EXCLUDED CLEAN -UP & PROTECTION $350 PANMEtTT AND PERFORMANCE BONDS $375 SUPERVISION $0 CONTRACTOR OVERHEAD & FEE $2,000 SUBTOTAL: HARD COSTS $12.575 SOFT COSTS: ALLOWANCE FOR PERMITS, BUSINESS LICENSE & PROCESS FEES EXCLUDED EXCLUDED ARCHITECTURAU ENGINEERING EXCLUDED BLUEPRINTING EXCLUDED SMTOTAL: SOFT COSTS 0 Pepe r a- :2/3 JF'I -1E -?x'02 03:19R FROM: TO:6443155 P:3/3 P.O3of2 AIRS Ar T7LED CONCRETE WALLS L Y OF NEWPORT BEACH QUALIFICATIONS 1 ExcLu810NS i ASSUMPUONS: EXCLUSIONS_ - ETEMS NOT SPECIFICALLY NOTED ABOVE, PLANS, PERMITS AND PLAN CHECK FE S. - EXCLUDES CONDITIONS HIDDEN FROM VIEW (BENEATH CONCRETE/ BEHIND WALLS) - PAYMENT AND PERFORMANCE BONDS - PERMITS, FEES, DEPUTY INSPECTIONS - RGMOVAL OF LANDSCAPE MATERIALS AND SOIL REMIND RETAINING WALLS AND SURFACE APPLIED WATERPROOFING TO BACK OF WALLS. - Pallging. stW=, larMscsping. Pfumtkng, dlo woA . masonry work. AwnoGtion, and removal of Dx l twa QUALIFICATIONS: - - BID IS FOR LUMP SUM IN ITS ENTRSTY . VALID FOR TNIRTY (30) DAYS. PLANS1 NOTES: PLAN BY DATED SHEETS I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE ABOVE QUALIFICATIONS, EXCLUSIONS, AND ASSUMPTIONS. APPROVED: SIGNED: am mquIM In W ac.n.aa by M. Conwacmr's State LEsrisleg Boom. Any able~ DATE: aoncamMg A cofactor may be rarerted to W. Dglsaaro(dIS Beard rvhtse atldress �. CofacWro Stab L.kAnsing Board SIGNED: P -O- Box 26800 Socr mwft, CA 86826 DATE: P.O3of2