HomeMy WebLinkAboutC-4694 - M/RSA for Citywide Street Striping, Pavement and Curb Marking and Sign Installation ServicesMAINTENANCE AND REPAIR SERVICES AGREEMENT l I q
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 23`d 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:
1. 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.
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
Source: http: / /www.bls.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
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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 Contractor's 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
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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.
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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
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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.
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 anytime.
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.
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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.
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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
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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:
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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 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 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. 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
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates written below.
APPROVED AS TO FORM:
OFFICE OF THJE CITY ATTORNEY
Date:
By: 1
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date: /-�- '�- / U
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
By:
Keith D. Curry, Mayor
CONSULTANT: ORANGE COUNTY
STRIPING SERVICES, INC., a California
corporation
Date:
By: /(5'
Dough atterson
Corporate Officer
Date:
By:
Glen Heiman
Financial Officer
Attachments: Exhibit A — Scope of Work
Exhibit B — Schedule of Billing Rates
A10- 00742/Maintenance and Repair Agreement Orange County Stripingr00030989
Orange County Striping Services, Inc. Page 16
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.
I Description I Amount I
Repaint Striping - One Coat (Lineal Foot)
Paint
Thermoplastic
Thermoplastic
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
Repaint Markings - One Coat (Each)
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 I Marking Minimum
$650.00
$1,000.00
$1,000.00
Curb Markings - One Coat (Lineal Foot)
Curb Painting
$0.75
Curb Painting Minimum
$6.50.00
Pavement Markings (Each)
Reflective Pavement Markers
$4.00
Non - Reflective Pavement Markers
$2.50
Pavement Markers Minimum
$750.00
Sign & Post Installation (Each)
Sign Installed on Existing Posts
$46.00
City to supply sign
Sign Installed on New 2" Unistrut & Base
$130.00
Contractor to supply post & base
Core Drilling Sidewalk for Sign Post
$145.00
Sign & Post Installation Minimum
$650.00
Exhibit B -1
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
BY THE CNY COUNCIL
CRY OF NEWPORT BEACH
h , 2 211.
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.
Agreement with Orange County Striping Services, Inc.
for Striping & Sign Installation Services
November 23, 2010
Page 2
Project 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:
Mauri a Turner
Administrative Analyst
Attachments
1. Summary of Proposals
2. Agreement
Submitted
Municipal Operations Director
ATTACHMENT
ATTACHMENT
Agreement
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:
1. 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.
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
Source: http: / /www.bls.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
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 Contractor's 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
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.
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.
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 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 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.
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.
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
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates written below.
APPROVED AS TO FORM:
OFFICE O THI= CITY ATTORNEY
Date: �` llo
By:
Leonie Mulvihill
Assistant City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Keith D. Curry, Mayor
CONSULTANT: ORANGE COUNTY
STRIPING SERVICES, INC., a California
corporation
By:
Douglas Patterson
Corporate Officer
Date:
IN
Glen Heiman
Financial Officer
Attachments: Exhibit A — Scope of Work
Exhibit B — Schedule of Billing Rates
A10- 00742/Maintenance and Repair Agreement Orange County Striping /00030989
Orange County Striping Services, Inc. Page 16
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.
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 / Markin Minimum
$650.00
$1,000.00
$1,000.00
Curb Painting $0.75
Curb Paintina Minimum $650.00
Reflective Pavement Markers $4.00
Non - Reflective Pavement Markers $2.50
Pavement Markers Minimum 1 $750.00
Sign Installed on Existing Posts $46.00 City to supply sign
Sign Installed on New 2" Unistrut & Base $130.00 Contractor to supply post & base
Core Drilling Sidewalk for Sign Post $145.00
Sign & Post Installation Minimum $650.00
Exhibit B -1