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C-4589 - On-Call M/RSA ( for the Repair and/or Installation of Metal Beam Guardrails and Wooden Posts)
ON -CALL MAINTENANCE /REPAIR SERVICES AGREEMENT WITH ORANGE COUNTY STRIPING SERVICES, INC THIS ON -CALL AGREEMENT ( "Agreement ") is made and entered into as of this 1st day of August, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and Charter City ( "City "), and ORANGE COUNTY STRIPING SERVICES, INC, a California Corporation whose principal place of business is 183 N. Pixley Street, Orange, CA 92868 ( "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 requires on -call maintenance /repair services for the repair and /or installation of metal beam guardrails and wooden posts. C. City desires to engage Contractor to repair guardrails ( "Project ") 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: t 11 :10& The term of this Agreement shall commence on the above written date, and shall terminate on the 31 st day of July 2015, unless terminated earlier as set forth herein. 2. SCOPE OF SERVICES Contractor shall provide "On -Call" maintenance /repair services as described in the Scope of Services attached hereto as Exhibit 'A' and incorporated herein by this reference (the "Services" or "Work "). 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 Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work 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, equipment and all utility and transportation services necessary for the Project. Upon verbal or written request from the City's Project Administrator (as defined in Section 6 below), 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: 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; and D. The time needed to finish the specific project. No Services shall be provided until the Project Administrator has provided written authorization to proceed with the Services as described in the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the Work described 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. On -Call Services Agreement Page 2 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, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement. Total compensation paid to Contractor during the Term of this Agreement shall not exceed Thirty Thousand Dollars and No Cents ($30,000.00) without written amendment to the Agreement. 4.1 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's invoices 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. 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 Project Administrator 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. WORK DEFICIENCIES AND CORRECTIONS 5.1 The Contractor's performance will be evaluated on a regular basis. When problems are identified, the Project Administrator will notify Contractor. If On -Call Services Agreement Page 3 issues are serious or go unresolved, a "Notice of Deficiency" will be issued to Contractor in writing. This notice will detail the issues and give a cure period to resolve them. 5.2 Failure to correct the deficiencies listed in the Notice of Deficiency within the timeframe specified by the City may, in the City's sole discretion, result in action being taken by the City, including, but not limited to, (a) withholding payment for the subject deficiency until the work is completed; (b) correcting the deficiency (using the City's own work force and /or by contracting out) and deducting any associated costs plus overhead incurred thereby from the total monthly compensation due the Contractor; (c) contracting with another Vendor to perform the maintenance and other Services required for the remainder of the term of the Contract; (e) terminating the agreement; and /or (f) taking any other action and exercising any other legal remedy available to the City under law. 6. ADMINISTRATION This Agreement will be administered by the General Services Department. Field Maintenance Superintendent or his /her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1 Contractor shall use only the standard materials described in Exhibit 'A' in performing Services under this Agreement. Any deviation from the materials described in Exhibit 'A' shall not be installed unless approved in advance 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 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. 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 workers. On -Call Services Agreement Page 4 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 supplier selected by the Contractor. 8.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, subconsultants, 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. 8.4 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 Work. 8.5 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. On -Call Services Agreement Page 5 8.6 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 9. 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. 10. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. 11. 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. The cost of such insurance shall be included in Contractor's billing rates. 1. Coverage and Limit Requirements. a. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. b. General Liability. Contractor shall maintain commercial general liability insurance 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) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, On -Call Services Agreement Page 6 including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. c. Automobile Liability. 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 accident. d. Builders Risk. For Contracts with Construction /Builders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special form causes of loss with limits equal to one hundred percent (100 %) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and /or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 2. Other Insurance Provisions or Requirements a. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. b. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: i. City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and On -Call Services Agreement Page 7 completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. ii. Contractor's insurance coverage shall be primary insurance and /or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or Services provided to the City. Any insurance or self- insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. iii. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 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. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which ten (10) days notice is required. e. Self- Insured Retentions. Contractor agrees not to self- insure or to use any self- insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self- insure its obligations to City. If contractor's existing coverage includes a self- insured retention, the self- insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self- insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. On -Call Services Agreement Page 8 f. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. g. Waiver. 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 and insurance clauses from each of its subcontractors. h. 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. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. j. City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and /or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractors payments. k. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. I. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter On -Call Services Agreement Page 9 from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 13. 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 shall 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. 14. 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. 15. 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 for immediate 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. 16. 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: On -Call Services Agreement Page 10 v Attn: Field Maintenance Superintendent General Services Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3055 Fax: 949 -650 -0747 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Kevin Ebnit Orange County Striping Service, Inc. 183 N. Pixley Street Orange, CA 92868 Phone: 714- 639 -4550 Fax: 714- 639 -6353 17. 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 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. 18. 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. 19. WAIVER On -Call Services Agreement Page 11 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. 20. 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. 21. 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. 22. 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. 23. 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 Proposal for On -Call Services and Scope of Work. 24. 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. 25. 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- On-Call Services Agreement Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: l Li �A,�w Leonie Mulvihill Assistant City Attorney ATTEST: M_ Leilani I'Brown City Clerk CITY OF NEWPO/2T BEACH A Municipal Co or ors By: lti Director General Services Department CONTRACTOR: Orange County Striping Service, Inc. M M Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rates A08-00093 revised 5.11.10 Form On -Call Maintenance Repair Services Douglas Patterson Corporate Officer Glen Heiman Financial Officer On -Call Services Agreement Page 13 !. J IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and.year first written above.. APPROVED AS TO FORM: CITY OF NEWP T/B A , OFFICE OF THE CITY ATTORNEY A Municipal rp, t • o. By: By: .:Lennie MAN lark-,. arrnon ... Assistant P.ity Attomey Director.. General Services De.:partment ATTEST: CONTRACTOR: Orange County Striping Service, Inc. Of By: Do:Gg ., atterson Co ate Officer By: Olen Heiman Financial Officer Attachments: Exhibit A - Scope of Services Exhibit B — Billing Rates A08 -00083 revlsed 5.11.10 Form On -Call Maintenance Repair Services On- Call`Services Agreement Page 13 EXHIBIT A SCOPE OF WORK Project Description Provide installation of metal beam guardrails (including end pieces) and wooden posts as specified by City. The selected contractor shall: o Submit Letter Proposal not less than 48 hours after the request has been made. o Conduct all work Monday through Friday between 7am and 4pm. Work may be performed on Saturday, Sunday and evening hours only if approved by the Field Maintenance Superintendent. Complete work within seven days of approval of Letter Proposal. Definitions Metal beam guardrail — galvanized steel or approved equivalent o Wooden post — 8" x 8" wooden post installed at.6' 3" intervals (or 12' 6" intervals for 1 length of metal beam guardrail) EXHIBIT A Page A -1 EXHIBIT B SCHEDULE OF BILLING RATES ATTACHMENT A: UNIT COST FORM Description I Amount Metal beam'guardrail repair per lineal foot per hour (existing material) Metal beam guardrail replacement per lineal foot per hour (new material) 5 (o S, — $ hS, - . 6. z 7` � 7- 2 -/© Signature Dale 14111.1 c- /n;4 bP ioa,,TIO Oeylfd P_ 1611 -1 T-, J7i" 1PlN_S Printed Name and Title Company -5,1 r v 1'e - EXHIBIT B Page B -1 CITY OF NEWPORT BEACH P3(11 ?!?tn CITY COUNCIL STAFF REPORT Agenda Item No. 12 November 23, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Director (949) 644 -3055, mharmon @newportbeachca.gov SUBJECT: Agreement with Orange County Striping Services, Inc. for Striping & Sign Installation Services ISSUE: Staff is requesting approval of an agreement with Orange County Striping Services, Inc. of Orange to provide striping & sign installation services. RECOMMENDATION: Approve an agreement with Orange County Striping Services, Inc. to provide striping & sign installation services for two (2) years with an option of three (3) one -year extensions. DISCUSSION: Background The City utilizes contract services to provide street striping, pavement and curb marking, and sign installation. Field Maintenance staff coordinates the painting and marking of pavement in conjunction with Public Works roadway rehabilitation projects. This maintenance service is an important aspect of preserving roadway safety for vehicles and pedestrians. The existing contract with Orange County Striping Services, Inc. expires on December 31, 2010. 7 Agreement with Orange County Striping Services, Inc. for Striping & Sign Installation Services November 23, 2010 Page 2 Protect Description This project consists of the application of paint and thermoplastic to pavement, the painting of curbs, and the installation of signs. Proposal Process and Analysis On September 22, a request for proposals was mailed to companies on file with the Municipal Operations Department. The deadline for submitting a proposal to the City was October 6. Prior to this deadline, the City received two proposals for striping & sign installation services. Cost Information Each vendor was required to submit a complete matrix of costs that included separate cost proposals for each of the described work elements utilizing three different marking methods. As the summary of proposals (Attachment 1) indicates, Orange County Striping Services, Inc. submitted the lowest, responsive proposal. Recommended Contractor Orange County Striping Services, Inc. submitted the lowest, responsive proposal. Based in Orange, Orange County Striping Services, Inc. has provided striping & sign installation services utilizing a variety of marking and installation methods for over 40 years. Orange County Striping Services, Inc. holds contracts with 11 Orange County cities including Newport Beach. Orange County Striping Services, Inc. has demonstrated its ability to provide excellent service to the City for several years. Environmental Review: This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Public Notice: This agenda item was noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Agreement with Orange County Striping Services, Inc. for Striping & Sign Installation Services November 23, 2010 Page 3 Funding Availability Funding for this agreement is included in the Fiscal Year 2010 -11 budget. The current budgeted cost for striping & sign installation services is $136,000 per year. Based on the proposal from Orange County Striping Services, Inc., this agreement would enable the Field Maintenance Division to complete all of the scheduled striping & sign installation for the year. Staff has improved coordination of roadway striping with the Public Works Pavement Management Plan in order to maximize the expected useful life of the markings. The reduced expenditures as a result of this coordination will be sufficient to offset the increased costs of striping services over the same time period. Staff will continue to evaluate the service needs and Public Works project schedules on a per -site basis in order to reduce costs while maintaining roadway safety. Prepared by: Maur' e Turner Administrative Analyst Attachments 1. Summary of Proposals 2. Agreement Submitted Municipal Operations Director Su ATTACHMENT ATTACHMENT `a MAINTENANCE AND REPAIR SERVICES AGREEMENT WITH ORANGE COUNTY STRIPING SERVICES, INC. FOR CITYWIDE STREET STRIPING, PAVEMENT AND CURB MARKING AND SIGN INSTALLATION SERVICES THIS MAINTENANCE AND REPAIR SERVICES AGREEMENT ( "Agreement ") is made and entered into as of this 23rd day of November, 2010 ( "Commencement Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter City ( "City "), and ORANGE COUNTY STRIPING SERVICES, INC., a California corporation whose principal place of business is 183 N. Pixley Street, Orange, CA 92868 ( "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 requires citywide repair and maintenance services on an as needed basis for street striping, pavement and curb marking and sign installation services. C. City desires to engage Contractor to provide street striping, pavement and curb marking and sign installation services on an as- needed basis (`Project'). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the initial term of this Agreement shall be for a period of two (2) years. The initial term shall commence on January 1, 2011. The term of this Agreement shall be extended for three (3) additional one (1) year terms With the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. The term of the Agreement shall not extend beyond December 31, 2015. ,r i 2. SCOPE OF SERVICES Contractor shall provide "as- needed" and "emergency" repair and maintenance services as described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this reference ( "Services" or "Work'). 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 Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work 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. At the Project Administrator's (as defined in Section 6 below) oral or written request, Contractor shall provide a proposal for Services. The written 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; and D. The time needed to finish the specific project. The Project Administrator shall be authorized to provide written acceptance of letter proposals for Services. Once authorized to proceed, Contractor shall diligently perform the duties in the approved proposal. Work that is outside of the scope of work described in the proposal shall not be performed without written authorization. 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. Orange County Striping Services, Inc. Page 2 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as soon as reasonably possible, but no event 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. 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, except for the annual adjustment in proportion to changes in the Consumer Price Index as more particularly described Section 4.1 below. Contractor's compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed the fees identified in the individual oral or written proposals, as approved by the Project Administrator. City shall pay Contractor an amount not to exceed One Hundred Fifty Thousand Dollars and No /100 ($150,000.00) fiscal year without written amendment to the Agreement. 4.1 Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rate to be paid by the City as set forth in Exhibits B and C shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective January 1, 2012, the index to be used for the numerator is the index for the month of October 2011 and the index to be used for the denominator is October 2010. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. Orange County Striping Services, Inc. Page 3 1 Source: http: / /www.bis.gov /cpi /data.htm Series ID: CUURA421SAO 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 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. 4.3 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 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 letter proposal 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 Billing Rates set forth in Exhibit B. 5. WORK DEFICIENCIES AND CORRECTIONS 5.1 The Contractor's performance will be evaluated on a regular basis. When problems are identified, the City will notify Contractor. If issues are serious or go unresolved, a "Notice of Deficiency' will be issued to Contractor in writing. This notice will detail the issues and give a cure period to resolve them. 5.2 Failure to correct the deficiencies listed in the Notice of Deficiency within the timeframe specified by the City may, in the City's sole discretion, result in action being taken by the City, including, but not limited to, (a) withholding payment for the subject deficiency until the work is completed; (b) correcting the deficiency (using the City's own work force and /or by contracting out). and deducting any associated costs plus overhead incurred thereby from the total monthly compensation due the Contractor; (c) contracting with another Vendor to perform the maintenance and other Services required for the remainder of the term of the Contract; (d) terminating the agreement; and /or (e) taking any other action and exercising any other legal remedy available to the City under law. Orange County Striping Services, Inc. Page 4 6. ADMINISTRATION This Agreement will be administered by the City's Municipal Operations Department. The Municipal Operations Department Director, or his /her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or an authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1 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 Highest 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. 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 professional standard of care. 7.2 Contractor represents and warrants to City that it has or shall obtain, and shall keep in full force and effect during the term of this Agreement, 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 in the State of California. This shall include but not be limited to, a current, valid license with the Contractors State License Board. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 7.3 Contractor shall use only the standard materials described in Exhibit A, or in the proposal for Services in performing Services under this Agreement. Any deviation from the materials described in Exhibit A or the proposal shall not be installed unless approved in advance by the Project Administrator. 7.4 All of Contractor's employees ( "Employees ") shall be neat in appearance and in uniforms as approved by the Project Administrator when performing Services. All Employees shall wear identification badges or patches. Those Employees working in or adjacent to traffic zones shall wear orange vests. Employees shall not remove any portion of their uniform while working within the City. Employees driving the Contractor's vehicles shall at all times possess and carry a valid Commercial Drivers License issued by the State of California. If the City's Project Administrator determines that any person employed by the Contractor has failed or refused to carry out the terms of this Agreement, appears to be incompetent, acts in a disorderly, improper, or unsafe manner, or shows signs of intoxication or other impairment, instead of initiating termination for breach, the City Administrator may notify Contractor, who shall take immediate remedial action, which may include removing the employee from the job site. Prior to Orange County Striping Services, Inc. Page 5 1 returning a removed Employee to work within the City, the Contractor shall provide in writing the reason for the individual's behavior and the means used to prevent this behavior from occurring again. In no event shall Contractor fail to prevent, prohibit, or resolve problems with its Employees working after receiving notice of same from the City. Violation of this section by Contractor shall be a material breach of this Agreement and may result in the City terminating the Agreement or temporarily suspending services hereunder, with Contractor being liable for any resulting costs incurred by the City. No action to terminate or suspend shall be taken by City until after Contractor is provided notice and afforded an opportunity to respond or refute the allegations, except that the Project Administrator may immediately suspend services hereunder if he or she finds such action reasonably appropriate to protect the public safety, health or welfare. 7.5 All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor. 7.6 The Contractor warrants that it has familiarized itself with all City roadways and sidewalks at the time of commencement of this Agreement. Contractor shall provide adequate safeguards to prevent damage to existing structures and improvements. Structures or improvements of any kind, whether public or private, which are removed, damaged or destroyed in the course of Work shall be replaced and /or repaired, at the Contractor's expense, to the original condition and to the satisfaction of the City. Failure to have such damages repaired in a timely manner will result in the City deducting from the Contractors payment the cost to perform the necessary remedial work. The Contractor shall at all times use good painting and installation practices as dictated by the highest standards within the industry and will make adjustments to its equipment as necessary. The Contractor must exercise due care so as to prevent spilling, scattering, or dropping of debris during the striping and sign installation activity and shall immediately clean up any such spillage, dropping, or scattering. Any striping and sign installation equipment used must not deposit debris onto private property. 7.7 The City may at various times and locations temporarily install portable traffic counting equipment of the type which is activated by vehicles coming in contact with a hose placed in the roadway. Caution shall be used by the Contractor to avoid damaging said equipment. If the Contractor, while in the performance of his contract duties, damages or causes to be damaged any of the aforementioned traffic counting equipment or appurtenances, the Contractor shall bear the entire cost for the restoration, repair, inspection, testing or replacement of said damaged equipment. 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, tools, equipment or other things used or employed in performing the Project Orange County Striping Services, Inc. Page 6 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 workers. 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 supplier selected by the Contractor. 8.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for 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. 8.4 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. 8.5 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. Orange County Striping Services, Inc. Page 7 8.6 The rights and obligations set forth in this Section shall survive the termination of this Contract. 9. 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. 10. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Contractor on the Project. 11. 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. The cost of such insurance shall be included in Contractor's billing rates. A. Coverage and Limit Requirements. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. ii. General Liability. Contractor shall maintain commercial general liability insurance 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) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the Orange County Striping Services, Inc. Page 8 J � policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. iii. Automobile Liability. 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 accident. B. Other Insurance Provisions or Requirements. i. 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 an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. ii. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 1) City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 2) Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or Services provided to the City. Any insurance or self - insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. Orange County Striping Services, Inc. Page 9 3) Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. iii. 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. iv. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to 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 except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for thirty (30) days written notice to City of cancellation or nonrenewal, except for nonpayment for which ten (10) days notice is required. v. Self- Insured Retentions. Contractor agrees not to self- insure or to use any self- insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self- insure its obligations to City. If contractor's existing coverage includes a self- insured retention, the self- insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self - insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. vi. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. vii. Waiver. 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 and insurance clauses from each of its subcontractors. viii. 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. Orange County Striping Services, Inc. Page 10 iv. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. x. City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and /or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. A. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. xii. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 12. PREVAILING WAGES It is agreed by the parties that in connection with the design, development, installation and construction of any public work (as defined by applicable law), if any, Contractor shall bear all risks of payment or non - payment of state prevailing wages and /or the implementation of Chapter 804, Statutes of 2003 and /or Labor Code sections 1726 and 1781 as the same may be enacted adopted or amended from time to time and /or any other provision of law. 13. 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 shall be permitted only with the express written consent of City. Contractor Orange County Striping Services, Inc. Page 11 shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 14. 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. 15. 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 for immediate 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. 16. 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: Attention: Director Municipal Operations Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949 -644 -3055 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Orange County Striping Services, Inc. Page 12 Attention: Kevin Ebnit Orange County Striping Services, Inc. 183 N. Pixley Street Orange, CA 92868 Phone: 714- 639 -4550 17. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement of 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 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 invoiced for in performance of this Agreement. 18. 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. 19. 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. 20. 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. 21. 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. Orange County Striping Services, Inc. I Page 13 22. 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. 23. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Sites, 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. 24. 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. 25. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 26. 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 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. 27. CLAIMS The Contractor and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the California Government Tort Claims Act (Government Code sections 900 et seq.). Orange County Striping Services, Inc. Page 14 28. 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. Orange County Striping Services, Inc. Page 15 l IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE O TH CITY ATTORNEY A California municipal corporation Date: �� [.i EXHIBIT A - SCOPE OF SERVICES Contractor shall provide the following services pursuant to this Agreement: Furnish all labor, equipment, materials, and supervision to perform maintenance as described herein including, but not limited to, the following: 1. Provide as needed and emergency street striping, pavement and curb marking using paint, spray - thermoplastic, or thermoplastic as specified by City. 2. Provide sign installation utilizing City - provided signs on existing or Contractor - installed posts as specified by City. Upon verbal or written request from the Project Administrator, Contractor shall provide an oral or written proposal for services requested by the City. Exhibit A -1- EXHIBIT B - RATES The Contractor agrees that for requested and /or required changes in the scope of work, including additions and deletions on work not performed, the proposal amount shall be adjusted in accordance with the following unit prices. Unit prices listed below refer to all items installed including all costs connected with such items; including but not limited to, materials, labor, overhead, and profit for the Contractor. Amount Double Yellow $0.16 $0.45 $0.85 Broken Double Yellow $0.14. $0.38 $0.80 4" Skip Yellow $0.06 $0.22 $0.40 4" Solid Yellow $0.08 $0.28 $0.45 4" Skip White $0.06 $0.22 $0.40 4" Solid White $0.08 $0.28 $0.45 6" Bike Lane $0.10 $0.32 $0.65 8" Solid White $0.13 $0.37 $0.80 Striping Minimum $750.00 $1,250.00 $1,250.00 Single Line Stall (each) $10.00 $32.00 Double Line Stall (each) $13.00 $45.00 12" Letter $3.00 $10.00 $25.00 8' Letter $7.50 $17.00 $35.00 12" Solid White (Lineal Foot) $0.75 $1.70 $1.70 Turn Arrows $12.00 $33.00 $55.00 Handicap Symbol $140.00 $225.00 Bike Lane & Arrow $30.00 $50.00 $65.00 Stencil / Marking Minimum $650.00 $1,000.00 $1,000.0( Curb Painting I $0.75 Curb Painting Minimum $650.00 Reflective Pavement Markers $4.00 Non - Reflective Pavement Markers $2.50 Pavement Markers Minimum 1 $750.01 Sign Installed on Existing Posts $46.00 Sign Installed on New 2" Unistrut & Base $130.00 Core Drilling Sidewalk for Sign Post $145.00 Sign & Post Installation Minimum $650.00 Exhibit B -1 City to supply sign Contractor to supply post & base