HomeMy WebLinkAboutC-4745 - M/RSA for Gym and Dance Floor Resurfacing�-- MAINTENANCE/REPAIR SERVICES AGREEMENT
WITH PRO LINE GYM FLOORS, INC. FOR
GYM & DANCE FLOOR RESURFACING
THIS MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement') is
made and entered into as of this 26th day of November, 2014 ("Effective Date'), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and Pro Line Gym Floors, Inc., a California corporation
("Contractor"), whose address is 3 Via Colinas, Coto de Caza, California 92679, and is
made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to perform maintenance and/or repair services
for City (`Project').
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the maintenance and/or repair services described in this
Agreement.
D. Contractor has examined the location of all proposed work, carefully reviewed
and evaluated the specifications set forth by City for the Project, is familiar with
all conditions relevant to the performance of services, and has committed to
perform all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2014, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall diligently perform all the services described in the Scope
of Services attached hereto as Exhibit A and incorporated herein by reference
("Services" or "Work'). As a material inducement to 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
industry standards in performing the Work required hereunder and that all materials will
be of good quality. For purposes of this Agreement, the phrase "highest industry
standards" shall mean those standards of practice recognized by one or more first-class
firms performing similar work under similar circumstances.
2.2 Contractor shall perform all Work 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.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Contractor shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Contractor to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 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 within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3.4 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the circumstances, by
fax, hand -delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except
as otherwise provided herein, no rate changes shall be made during the term of this
Agreement without the prior written approval of City. Contractor's compensation for all
Services performed in accordance with this Agreement, including all reimbursable
items, shall not exceed Eleven Thousand Nine Hundred Fifty Dollars and 00/100
($11,950.00), without prior written amendment to the Agreement.
4.2 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services 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) calendar days after approval of the monthly invoice by City staff.
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4.3 City shall reimburse Contractor only for those costs or expenses
specifically identified in Exhibit B to this Agreement, or specifically approved in writing in
advance by City.
4.4 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B.
5. PROJECT MANAGER
5.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Wayne Terhardt to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Recreation & Senior Services
Department. City's Recreation Manager or designee shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator shall represent City in all matters pertaining to the Services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Contractor's Work schedule.
8. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
8.1 Contractor shall use only the standard materials described in Exhibit A in
performing Services under this Agreement. Any deviation from the materials described
in Exhibit A shall not be installed or utilized unless approved in advance and in writing
by the Project Administrator.
8.2 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
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the Services required by this Agreement, and that it will perform all Services in a
manner commensurate with highest industry standards. All Services shall be performed
by qualified and experienced personnel who are not employed by City. By delivery of
completed Work, Contractor certifies that the Work conforms to the requirements of this
Agreement and all applicable federal, state and local laws and the industry standard.
8.3 Contractor represents and warrants to City that it has, shall obtain and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
used or employed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or
its subcontractors, or its workers, or anyone employed by either of them.
9.2 Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the
Work of any subcontractor or supplier selected by Contractor.
9.3 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,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Contractor's presence or
activities conducted on the Project (including the negligent and/or willful acts, errors
and/or omissions of Contractor, its principals, officers, agents, employees, vendors,
suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
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9.4 Notwithstanding the foregoing, nothing herein shall be construed to
require Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' 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
Contractor.
9.5 Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original
condition and former usefulness as soon as possible, and to protect public and private
property. Contractor shall be liable for any private or public property damaged during
the performance of the Work by Contractor or its agents.
9.6 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
9.7 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Contractor, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Contractor or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Contractor or any of Contractor's employees or agents, to be the agents or employees
of City. Contractor shall have the responsibility for and control over the means of
performing the Work, provided that Contractor is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Contractor as to the details of the performance of the Work or to exercise a measure of
control over Contractor shall mean only that Contractor shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with Contractor on the Project.
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
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order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Contractor, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Contractor is a
partnership or joint -venture or syndicate or cotenancy, which shall result in changing the
control of Contractor. Control means fifty percent (50%) or more of the voting power or
twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -
venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Contractor shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole
right to use such materials in its discretion without further compensation to Contractor or
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any other party. Contractor shall, at Contractor's expense, provide such Documents to
City upon prior written request.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Contractor under this Agreement. All such records and invoices shall be clearly
identifiable. Contractor shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Contractor shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Contractor under this Agreement.
20. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
21. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project.
22. CONFLICTS OF INTEREST
22.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
22.2 If subject to the Act, Contractor shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Contractor shall indemnify and hold harmless
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City for any and all claims for damages resulting from Contractor's violation of this
Section.
23. NOTICES
23.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
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.
23.2 All notices, demands, requests or approvals from Contractor to City shall
be addressed to City at:
Attn: Recreation Supervisor
Recreation & Senior Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
23.3 Ail notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at:
Attn: Wayne Terhardt
Pro Line Gym Floors, Inc.
31040 Via Colinas
Coto de Caza, CA 92679
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Contractor's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Contractor in writing as unsettled at the time of its final request
for payment. Contractor and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Contractor shall be required to file any claim
Contractor may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
25. TERMINATION
25.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
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notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
25.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
26. RESERVED
27. LABOR
27.1 Contractor shall conform with all applicable provisions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor
Standards Act ("FLSK) (29 USCA § 201, et seq.).
27.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
27.3 Contractor represents that all persons working under this Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
27.4 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 from loss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any
applicable federal, state and local labor laws or law, rules, and/or regulations. This
obligation shall survive the expiration and/or termination of the Agreement.
28. STANDARD PROVISIONS
28.1 Recitals. City and Contractor acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference.
28.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
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28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 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.
28.7 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.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORN Y'SFFICE
Date: 1 TO
Y
Aaron C. Harp
City Attorney
ATTEST:
Date: a- .
im
.Wy:-kw� Leilani 1. Brown�
City Clerk
.... .
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
L a Detweil
R eation & Senior Services
Department Director
CONTRACTOR: Pro Line Gym Floors,
Inc., a California corporation
Date: 0- Z'O q
By:
Wayne Terhardt
President & Secretary
END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
IMPORTANT –ALL WORK MUST BEGIN ON DECEMBER 26, 2014 AND
COMPLETED BY DECEMBER 31, 2015
THE MAIN TASKS FOR THIS PROJECT ARE CLASSIFIED BY SITE BELOW:
SITE 1 — COMMUNITY YOUTH CENTER DANCE FLOOR
• Contractor shall provide all labor, materials, equipment and supervision to
perform the following tasks:
o Wet scrub floor with Hillyard Super Shine -All and 3M preparation pads
o Abrade floor with 120g sand screens
o Tack floor clean of all dust and debris
o Apply two (2) coats of Hillyard Contender Gym Finish to the dance floor
SITE 2 — NEWPORT COAST COMMUNITY CENTER DANCE FLOOR & GYM
FLOOR
• Contractor shall provide all labor, materials, equipment and supervision to
perform the following tasks:
o Wet scrub floor with Hillyard Super Shine -All and 3M preparation pads
o Abrade floor with 120g sand screens
o Tack floor clean of all dust and debris
o Check lines for minor touch ups and perform as necessary
o Apply two (2) coats of Hillyard Contender Gym Finish to the dance floor
SITE 3 — WEST NEWPORT COMMUNITY CENTER GYM FLOOR
• Contractor shall provide all labor, materials, equipment and supervision to
perform the following tasks:
o Wet scrub floor with Hillyard Super Shine -All and 3M preparation pads
o Abrade floor with 120g sand screens
o Tack floor clean of all dust and debris
o Check lines for minor touch ups and perform as necessary
o Apply two (2) coats of Hillyard Contender Gym Finish to the keys & entire
gym floor
SITE 4 — OASIS SENIOR CENTER DANCE ROOM
• Contractor shall provide all labor, materials, equipment and supervision to
perform the following tasks:
o Apply two (2) coats of Bona Kemi Traffic Gloss Finish to the dance room
Pro Line Gym Floors, Inc. Page A-1
EXHIBIT B
SCHEDULE OF BILLING RATES
CONTRACTOR SHALL PERFORM SERVICES AS DESCRIBED IN THIS
AGREEMENT AND RECEIVE COMPENSATION FOR WORK IN ACCORDANCE
WITH THE FOLLOWING RATES FOR EACH SITE:
SITE 1 — Community Youth Center Dance Floor
3000 Fifth Avenue, Corona del Mar, CA 92625
• COST — DANCE FLOOR
SITE 2 — Newport Coast Community Center
6401 San Joaquin Hills Road, Newport Coast, CA 92658
• COST — DANCE FLOOR
• COST — GYM FLOOR
SITE 3 — West Newport Community Center Gym Floor
883 West 15th Street. Newport Beach, CA 92660
• COST — GYM FLOOR
SITE 4 — OASIS Senior Center Dance Floor
800 Narcissus, Corona del Mar, CA 92625
• COST — DANCE FLOOR
$1500
$1,500.00
$4400
—$1,100.00
—$3,300.00
$3900
—$3,900.00
$2150
—$2,150.00
TOTAL $11,950
Pro Line Gym Floors, Inc. Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS — MAINTENANCE/REPAIR/JANITORIAL SERVICES
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance,
a Waiver of Subrogation endorsement in favor of City, its officers,
agents, employees and volunteers.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, products -
completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another
assumed in a business contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of 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
Pro Line Gym Floors, Inc.
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City and its officers, officials, employees, and agents shall be included as
insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Aqreements Between the Parties. The parties hereby agree to the
following:
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 other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
Pro Line Gym Floors, Inc.
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters
into contracts with on behalf of City will be submitted to City for review.
Failure of City to request copies of such agreements will not impose any
liability on City, or its employees. Contractor shall require and verify that
all subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as
CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. 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. If the
Contractor maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits maintained
by the Contractor. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance If Contractor or any sub -
consultant fails to provide and maintain insurance as required herein, then
City shall have the right but not the obligation, to purchase such
insurance, to terminate this Agreement, or to suspend Contractor's right to
proceed until proper evidence of insurance is provided. Any amounts paid
by City shall, at City's sole option, be deducted from amounts payable to
Contractor or reimbursed by Contractor upon demand.
Pro Line Gym Floors, Inc.
H. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
I. Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
Pro Line Gym Floors, Inc.
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 11/6/14 Dept./Contact Received From:
Teri
Date Completed: 11/10/14 Sent to: Teri By: Chris
Company/Person required to have certificate: Pro -Line Gym Floors
Type of contract: All Others
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 1/26/14-1/26/15
A.
INSURANCE COMPANY: Financial Pacific Insurance Company
B.
AM BEST RATING (A-: VII or greater): A:X
C.
ADMITTED Company (Must be Califomia Admitted):
Is Company admitted in California?
X Yes ❑ No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
1,000,000/2,000,000
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
X Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
(What is limits provided?) N/A
include): Is it included? (completed Operations status does
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
not apply to Waste Haulers or Recreation)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
G.
HIRED AND NON -OWNED AUTO ONLY: ❑ NIA
COMPLETED OPERATIONS ENDORSEMENT (completed
H.
NOTICE OF CANCELLATION: ❑ N/A
Operations status does not apply to Waste Haulers)
E Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
X Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
X Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes X No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
X NIA ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A E Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 6/g/14 -12/g/14
A.
INSURANCE COMPANY: State Farm Mutual Automobile Insurance Company
B.
AM BEST RATING (A-: VII or greater) A++:XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
X Yes ❑ No
D.
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided? 1,000,000
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?) N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only): X N/A
❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY: ❑ NIA
❑ Yes E No
H.
NOTICE OF CANCELLATION: ❑ N/A
X Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 4/1/14-4/1/15
A. INSURANCE COMPANY: Security National Insurance Company
B. AM BEST RATING (A-: VII or greater): A:XI
C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No
D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1,000,000
F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No
H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
eoAk
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
11/10/14
Date
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management Date
* Subject to the terms of the contract.
gWS5
AGREEMENT FOR GYWDANCE FLOOR RESURFACING MAINTENANCE
AT WEST NEWPORT GYM, NEWPORT COAST COMMUNITY CENTER GYM FLOOR
AND DANCE FLOOR AT COMMUNITY YOUTH CENTER WITH
PRO LINE GYMNAISUM FLOORS
THIS CONTRACT FOR MAINTENANCE is made and entered into as of this 13)
day of 11XC 2010, by and between the CITY OF NEWPORT BEACH, a California
Municipal Corporation and Charter City ("City"), and Wayne Terhardt, a sole proprietor DBA
PRO LINE GYMNASIUM FLOORS ("Contractor"), whose principal place of business is
31041 Via Colinas, Coto de Caza, California 92679 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 cavy 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 that the gymnasium, stage & dance floors at Newport Coast Community
Center, located at 6401 San Joaquin Hills Road, the dance floor at the Community Youth
Center at 3000 Fifth Avenue and the gymnasium floor at the West Newport Community
Center, located at 883 West Ie Street be resurfaced.
C. City desires to engage Contractor to perform the refinishing work to the gymnasium, stage
and dance floors at Newport Coast Community Center, the dance floor at the Community
Youth Center and the gymnasium floor at the West Newport Community Center, ("Project").
Contractor has agreed to perform the Project over five consecutive working days from
December 27 - 31, 2010.
C. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications set forth by the City for the Project, and is familiar with
all conditions relevant to the performance of services and has committed to perform
all work required for the price specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
TERM
The term of this Agreement shall commence on the above written date, and shall terminate
on the 315t day of December 2010, unless terminated earlier as set forth herein.
2. SCOPE OF WORK
Contractor shall perform all the services described in the Scope of Work attached hereto as
Exhibit A and incorporated herein by this reference. As a material inducement to the City
entering into this Agreement, Contractor represents and warrants that Contractor is a
provider of first class work and services and Contractor is experienced in performing the
work and services contemplated herein and, in light of such status and experience,
Contractor covenants that it shall follow the highest professional standards in performing
the work and services required hereunder and that all materials will be of good quality. For
purposes of this Agreement, the phrase "highest professional standards" shall mean those
standards of practice recognized by one or more first-class firms performing similar work
under similar circumstances.
Contractor shall perform everything required to be performed, and shall provide and furnish
all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and Contractor
shall complete the Work within the time set forth in this Section. The failure by Contractor
to meet this deadline may result in termination of this Agreement by City and assessment
of damages as outlined in Section 3.1.
All work shall be completed by December 31, 2010.-
3.1 The parties agree that it is extremely difficult and impractical to determine and
fix the actual damages that City will sustain should the Contractor fail to
complete the Project within the time allowed. Should Contractor fail to
complete the work called for in this Agreement on the date outlined above,
Contractor agrees to the deduction of liquidated damages in the sum of Two
Hundred & Fifty Dollars ($250) for each calendar day beyond the date
scheduled for completion provided in Section 2 of this Agreement assuming
that the Contractor has access to the space on December 27, 2010 as
described herein.
Execution of this Agreement shall constitute agreement by the City and
Contractor that Two Hundred & Fifty Dollars ($250) per calendar day is the
minimum value of the costs and actual damage caused by the failure of the
Contractor to complete the work within the allotted time. Such sum is
liquidated damages and shall not be construed as a penalty, and may be
deducted from payments due the Contractor if such delay occurs.
4. COMPENSATION
As full compensation for the performance and completion of the Project as required by the
Scope of Work and Schedule of Billing Rates attached hereto as Exhibit A, City shall pay to
Contractor and Contractor accepts as full payment the sum of Eight Thousand Five
Hundred & FiftY Dollars and no/100 ($8550). Contractor shall not receive any additional
compensation unless approved in advance by the City in writing. The City shall make not
progress payments as the Project work proceeds based on the percentage of Project work
completed. City shall pay Contractor no later than thirty (30) days after approval of the
monthly invoice by City staff.
PRO LINE GYMNASIUM FLOORS PAGE12
5. ADMINISTRATION
This Agreement will be administered by the Recreation & Senior Services Department.
Janet Cates, Recreation Manager 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.
6. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
6.1 Contractor shall use only the standard materials described in Exhibit A in
performing services under this Agreement. Any deviation from the materials
described in Exhibit A shall not be installed unless approved in advance by
the City Administrator.
6.2 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required
to perform the services required by this Agreement, and that it will perform all
services in a manner commensurate with community professional standards.
All services shall be performed by qualified and experienced personnel who
are not employed by City, nor have any contractual relationship with City.
7. RESPONSIBILITY FOR DAMAGES OR INJURY
7.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or
other things used or employed in performing the Project or for injury to or
death of any person as a result of Contractor's performance of the services
required hereunder; or for damage to property from any cause arising from
the performance of the Project by Contractor, or its subcontractors, or its
workers, or anyone employed by either of them.
7.2 Contractor shall be responsible for any liability imposed by law and for injuries
to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's work on the Project,
or the work of any subcontractor or supplier selected by the Contractor.
7.3 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 Contract, any work performed or services provided under this Contract
including, without limitation, defects in workmanship or materials or
PRO LINE GYMNASIUM FLOORS
PAGE13
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 Contract. 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 Consultant.
7.4 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.
7.5 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.
7.6 The rights and obligations set forth in this Section shall survive the
termination of this Contract.
8. 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.
9. 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.
10. 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 bid.
PRO LINE GYMNASIUM FLOORS PAGE14
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
Employees 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, 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
PRO LINE GYMNASIUM FLOORS PAGE15
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
contract. All of the executed documents referenced in this contract 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:
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.
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
PRO LINE GYMNASIUM FLOORS PAGE16
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 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.
f. Timet' 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.
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.
k. Coverage not Limited. All insurance coverage and limits provided by
contractor and available or applicable to this agreement are intended to apply
PRO LINE GYMNASIUM FLOORS
PAGE17
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.
1. 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.
11. SUBCONTRACTING
City and Contractor agree that subcontractors may be used to complete the work outlined
in the Scope of Services provided the Contractor obtains City approval prior to the
subcontractor performing any work. Contractor shall be fully responsible to City for all acts
and omissions of the subcontractors. Nothing in this Contract shall create any contractual
relationship between City and subcontractor nor shall it create any obligation on the part of
City to pay or to see to the payment of any monies due to any such subcontractor other
than as otherwise required by law.
12. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to constitute
a failure to pay according to the terms of this Contract. Contractor shall not discontinue
work as a result of such withholding. Contractor shall have an immediate right to appeal to
the City Manager or his/her designee with respect to such disputed sums. Contractor shall
be entitled to receive interest on any withheld sums at the rate of return that City earned on
its investments during the time period, from the date of withholding of any amounts found to
have been improperly withheld.
13. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the California Political
Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial
interest that may foreseeably be materially affected by the work performed under this
Contract, and (2) prohibits such persons from making, or participating in making, decisions
that will foreseeably financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so
constitutes a material breach and is grounds 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.
PRO LINE GYMNASIUM FLOORS PAGE18
14. NOTICES
All notices, demands, requests or approvals to be given under the terms of this Agreement
shall be given in writing, to City by Contractor and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof in the
United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Contractor to City shall be addressed to City
at:
Aftn:Janet Cates
Recreation & Senior Services Department
City of Newport Beach
3300 Newport Blvd
Newport Beach, CA 92663
Phone: 949-644-3160
Fax: 949-644-3155
All notices, demands, requests or approvals from City to Contractor shall be addressed to
Contractor at:
Attention:Wavne Terhardt
Pro Line Gymnasium Floors
31041 Via Colinas
Coto de Caza, 92679
Phone: 949-459-0793
Fax: 949-459-0794
15. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default in
the performance of this Agreement. If such default is not cured within a period of two (2)
calendar days, or if more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due performance within
two (2) calendar days after receipt of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, the non -defaulting party may
terminate the Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving seven (7) calendar days
prior written notice to Contractor. In the event of termination under this Section, City shall
pay Contractor for services satisfactorily performed and costs incurred up to the effective
date of termination for which Contractor has not been previously paid. On the effective
date of termination, Contractor shall deliver to City all materials purchased in performance
of this Agreement.
16. COMPLIANCE WITH ALL LAWS
PRO LINE GYMNASIUM FLOORS
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Contractor shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state, county or
municipal, whether now in force or hereinafter enacted.
17. WAIVER
A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant or
condition.
18. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal Agreement or implied covenant
shall be held to vary the provisions herein.
19. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the
Scope of Services, the terms of this Agreement shall govern.
20. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both
Contractor and City and approved as to form by the City Attorney.
21. EFFECT OF CONTRACTOR'S EXECUTION
Execution of this Agreement by Contractor is a representation that Contractor has visited
the Project Site, has become familiar with the local conditions under which the work is to be
performed, and has taken into consideration these factors in submitting its Project Proposal
and Scope of Work.
22. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to it
and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
23. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise apply.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first written above.
PRO LINE GYMNASIUM FLOORS PAGE110
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE OF THE CITY/
TTORNEY A California Municipal Corporation
By:
Myn e D.
Assistant
ATTEST:
By:
By
uchamp Laura Detweiler, ctor
ttorney�� Recreation &Senior Services Department
CONTRACTOR: Wayne Terhardt�
Leilani I. Brown
City Clerk
Attachments: Exhibit A -
�.° PO
ces and Schedule of Billing Rates
[insert name]
[insert corporate officer title]
PRO LINE GYMNASIUM FLOORS PAGE111