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HomeMy WebLinkAboutC-4827 - Contract for the Construction of Public Buildings for Lifeguard Tower Construction at Newport PierCONTRACT FOR THE CONSTRUCTION OF PUBLIC BUILDINGS WITH R.G. FLEMING, INC. FOR LIFEGUARD TOWER CONSTRUCTION AT NEWPORT PIER THIS CONTRACT FOR CONSTRUCTION OF PUBLIC BUILDING ( "Contract ") is made and entered into as of this 2ftday of April, 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and R.G. FLEMING, INC., a California corporation ( "Contractor") whose principal place of business is 33866 Zarzito Drive, Dana Point, California 92629 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to construct three (3) Lifeguard Towers. C. City desires to engage Contractor to utilize City - provided materials and perform construction services to provide three (3) Lifeguard Towers at the sand beach adjacent to the west side of the Newport Pier ( "Project "). D. City has solicited and received a proposal from Contractor and desires to retain Contractor to render services under the terms and conditions set forth in this Contract. E. 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 Contract over a period of 27 calendar days commencing on April 25, 2011 or upon issuance of the "Notice to Proceed." NOW, THEREFORE, City and Contractor agree as follows: 1. TERM The term of this Contract shall commence on the above written date and shall terminate on May 31, 2011 unless terminated earlier as provided for herein. 2. SCOPE OF WORK 2.1 City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. As such, Contractor shall perform all the work as described in the Request for Proposals dated March 7, 2011 ( "RFP "), and Proposal Cost Form, attached hereto as Exhibits "A" and "B," and incorporated herein by this reference (the "Work" or "Services "). As a material inducement to the City entering into this Contract, 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 Contract, 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. 2.2 City shall provide necessary construction materials for this project. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, additional materials, necessary tools, 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 Contract and Contractor shall complete the Work within 27 calendar days from the date of issuance of the "Notice to Proceed." Failure to complete the work in the time allotted may result in termination of the Contract by City. 4. COMPENSATION As full compensation for the performance and completion of the Project as required by the Scope of Work, in accordance with the provisions of this Section and the Proposal, attached hereto as Exhibit "B ", City shall pay to Contractor and Contractor accepts as full payment the sum of Thirteen Thousand Three Hundred Sixty Two Dollars and no /100 ($13,362.00). Contractor shall not receive any additional compensation unless approved in advance by the City's Project Administrator (as defined below in Section 6) in writing. The City shall make full payment to Contractor no later than thirty (30) days after acceptance of Work by City. 5. PROJECT MANAGER Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the term of the Contract. Contractor has designated Richard Fleming to be its Project Manager. Contractor shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. 6. ADMINISTRATION This Contract shall be administered by the Fire Department. Jim Turner, Lifeguard Battalion Chief, or his designee shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Contract. R.G. Fleming, Inc. Page 2 of 22 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1 Contractor shall use only the standard materials and equipment as described in Exhibits "A" and "B" in performing Services under this Contract. Any deviation from the materials or equipment described in Exhibit "A" and "B" shall not be utilized unless approved in advance by the Project Administrator. 7.2 Contractor shall comply with the terms and conditions of the Request for Proposals dated March 2, 2011, which is incorporated herein by reference. 7.3 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 Contract, and that it will perform all Services in a manner commensurate with Highest Professional Standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8. RESPONSIBILITY FOR DAMAGES OR INJURY 8.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the Services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subcontractors, or its workers, or anyone employed by either of them. 8.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's Work on the Project, or the Work of any subcontractor or supplier selected by the Contractor. 8.3 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (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 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). R.G. Fleming, Inc. 8.4 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this 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. 8.5 Contractor shall perform all Work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Project Work. 8.6 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 8.7 The rights and obligations set forth in this Section shall survive the termination of this 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 Contract. No civil service status or other right of employment shall accrue to Contractor or its employees. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 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. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with the City's Project Administrator in advance of all critical decision points in R.G. Fleming, Inc. Page 4 of 22 order to ensure the Project proceeds in a manner consistent with City goals and policies. 12. INSURANCE 12.1 Without limiting Contractor's indemnification of City, and np for to commencement of Work. Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. 12.2 Coverage and Limit Reguirements. 12.2.1 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. 12.2.2 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. 12.2.3 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 Contract, 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. 12.2.4 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 R.G. Inc. 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. 12.3 Other Insurance Provisions. 12.3.1 Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and 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. 12.3.2 General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 12.3.2.1 City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insured 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. 12.3.2.2 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. 12.3.2.2 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. 12.3.3 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 R.G. Fleming, Inc. Page 6 of 22 with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 12.3.4 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 builders 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. 12.3.5 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 contractors 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. 12.3.6 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 Contract. 12.3.7 Waiver. All insurance coverage maintained or procured pursuant to this Contract 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. 12.3.8 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. 12.3.9 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. 12.3.10 City's Remedies. City shall have the right to order the Contractor to stop work under this Contract and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the R.G. Inc. 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. 12.3.11 Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this Contract are intended to apply to the full extent of the policies. Nothing contained in this Contract or any other Contract relating to the city or its operations limits the application of such insurance coverage. 12.3.12 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 with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Contract 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 (5) days of the expiration of the coverages. 13. BONDING 13.1 Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Faithful Performance Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Contract in the form attached hereto as Exhibit "C" which is incorporated herein by this reference. 13.2 The Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Proaertv- Casualty. 13.3 The Contractor shall deliver, concurrently with execution of this Contract, the Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 14. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Contract shall be paid to all workmen employed on the Work to be done according to the Contract by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of R.G. Fleming, Inc. Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Contract. A copy of said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him /her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 15. 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. 16. 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. 17. CONFLICTS OF INTEREST 17.1 The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 17.2 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 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. 18. NOTICES R.G. Fleming, Inc. Page 9 of 22 18.1 All notices, demands, requests or approvals to be given under the terms of this Contract shall be given in writing, to City by Contractor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Jim Turner, Project Administrator Fire Department City of Newport Beach PO Box 1768 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Phone: (949) 644 -3046 Fax: (949) 673 -3056 E -mail: jturner @nbfd.net 18.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Richard Fleming R.G. Fleming, Inc. 33866 Zarzito Drive Dana Point, CA 92629 Phone: (949) 678 -5577 Fax: (949) 661 -6495 E -mail: richardfleming0099 @msn.com 19. TERMINATION 19.1 In the event that either party fails or refuses to perform any of the provisions of this Contract at the time and in the manner required, that party shall be deemed in default in the performance of this Contract. 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 Contract forthwith by giving to the defaulting party written notice thereof. 19.2 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Contract 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 Contract. R.G. Fleming, Inc. Page 10 of 22 20. RECORDS Contractor shall keep records and invoices in connection with the Work to be performed under this Contract. 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 Contract. 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, documents, proceedings and activities related to the Contract for a period of three (3) years from the date of final payment to Contractor under this Contract. 21. STANDARD PROVISIONS 21.1 Compliance with all Laws. Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 21.2 Waiver. A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 21.3 Integrated Contract. This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 21.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Contract and the Exhibits attached hereto, the terms of this Contract shall govern. 21.5 Amendments. This Contract 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. 21.6 Effect of Contractor's Execution. Execution of this Contract 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. 21.7 Controllino Law and Venue. The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this R.G. Fleming, Inc. Page 11 of 22 Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 21.8 Notice of Claims. Unless a shorter time is specified elsewhere in this Contract, before making its final request for payment under the Contract Documents, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Contract. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Contract except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the 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 Tort Claims Act (Govt. Code §§ 900 et seq.). 21.9 Eoual 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. 21.10 Interpretation. The terms of this Contract 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 Contract or any other rule of construction which might otherwise apply. 21.11 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. 21.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 21.13 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. R.G. Fleming, Inc. Page 12 of 22 IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE 91TY ATTORNEY Date: By: ristao D ea ch p nt ttor e ATTEST: Date: 4- -A" I j' �� By. a4V Leilani I. Brown City Clerk OF 14 EWipO �.,. \ .,. _ •per P" CITY OF NEWPORT BEACH, A California municipal corporation Date: vJ'- 07/ -?F,9, I in MikeAef rg�(n Fire / CONSULTANT: R.G. Fleming, Inc., a California corporation Date: x/ '3 )// Richard Fleming President Date: 4 -L8 %/ By S== 'Ci* Mets- Wim' lr,�►`�► Tre urer Attachments: Exhibit A - Scope of Work Exhibit B - Proposal Exhibit C - Faithful Performance Bond Exhibit D - Labor and Materials Bond R.G. Fleming, Inc. Page 13 of 22 EXHIBIT A SCOPE OF WORK Contractor agrees to construct three (3) lifeguard towers in accordance with the blueprint documents provided in Request for Proposal (RFP) No. 2 -10 and the Scope of Work listed below. Please note that the City will be providing all major materials required for this construction project; the contractor is expected to provide the service component of this project. Construction will take place just to the west of the Newport Pier (between the pier and the Dory fleet). Materials for tower construction will be provided by the City. Contractor will provide construction labor. Contractor may use large stationary power tools (must provide own small hand, portable power tools): o Radial arm saw • Drill press • Table saw • Chop saw • Band saw • Jigs — whatever are in stock from previous tower construction. • Construct 2 towers, with a City option for a third tower. • Construction to be completed by May 1, at the very latest. • Project should take (1) contractor and (1) laborer approximately one (1) week to build each tower. • The City of Newport Beach Municipal Operations Department will provide a relatively level construction pad on the sand. • Contractor may open back door to workshop for easy access to construction site. • Contractor may park up to two (2) vehicles in Lifeguard Headquarters parking lot during construction only. • Lifeguards may move a tower adjacent to the construction site for contractor to use as a rough template, if requested. • Contractor shall be responsible for cleaning the work area at the end of each workday. This cleanup process shall include the removal of trash and debris from the work site. • Lifeguards need to be able to complete a punch list of corrections before final payment, with daily /regular walk - throughs to ensure project is progressing on schedule and according to the construction plans. EXHIBIT B PROPOSAL •r = it � °�i Iwo ilw-wi W& i 11tis KFP is intended for the rxa><ri�on of one ( t ).Stuidud Tower and torte t t i M"fied Toter, with a City option for a second Stmdatd Tower. Tower M Proposed _ Comdraction Labor EgWuftd 9 of Boris To SoW 7 - Standard Tower °SBe $itEfi�P56Rt f1- i'P g . ��flil.l u. ��. 2 - MoMed Tour /� eSm Blueprint A -2 AND A -I S` 41 , oo i! 3 - Standard Tower of a� i�as s �3 IN MM ' a iN t i9.:. "' i -l: 1 .? usm fowu JUL-24-2002 11:10A FROM: TO:19168565020. P:4/5 CITY OF NEWPORT BEACH BOND NO. 71092116 LABOR AND MATERIALS PAYMENT BOND EXHIBIT B WHEREAS, the City of Newport Beach, State of California, has awarded to Insert Contractor Name hereinafter designated as the "Principal," a contract for the Insert Project name, located at Insert address in the City of Newport Beach, in strict conformity, with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference, WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractors, shall fail to pay for any materials, provisions, or* other supplies used in, upon, for, or about the performance of the Work agreed to be done, or for -any Worts or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, Western Surety Company I.. duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety") are held firmly bound unto the, City of Newport Beach, in the sum of Insert Contract $ Amount lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by the City of Newport Beach under the terms of the Contract; for which payment well and truly to be made, we bind ourselves; our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions; or other supplies, implements or machinery used in, upon, for, or about the performance of the Work contracted to be done, or for any other Work or labor thereon of any kind, or..for amounts due under the Unemployment Insurance Code with respect to such Work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such Work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorney's fee, to be fixed by the Court as required by the provisions of Section 3250 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 3181 of the California Civil Code so as RFP - Lifeguard Tower conatfuction Page 37 of 41 JUL-24-2002 11:11A FROM: TO:19168565020 P:5/5 IMM to give a right of action to them or their assigns in any suit brought upon this Bond, as required by and in accordance with the provisions of Sections 3247 et. seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the Work to be performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the Contract or to the Work or to the specifications, In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the 19th day f April 20 11 f is.FLEmwc, Name of Contractor (Principal) Auth rued Sig . Ve/Title j?. 6 i:4,w.451111c. Western.Surety Compan Name of Surety 101 South Phillips Avenue Sioux Falls, SD 57117 Address of Surety 800-331-6053 Telephone �Q�gURETyCo ti ROW A_0 w fAut z .I rized Agent Signature • ��GTfI DA���P Cynthia Ann Shaw (Attorney -In -Fact) Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BEA TTA CHED RFP - Lifeguard Tower Construction Page 38 of 41 CNA, 4/19/2011 10;09;30 AM PAGE 1/004 Fax Server ❑ Acknowledgment of Principal ❑X Acknowledgment of Surety (Attorney -in -Fact). STATE OF CALIFORNIA COUNTY OF SACRAMENTOap t 99 q j \ OnY t 1 2 before me, c:._ date here inset a 'title of the offs Personally appeared CYNTFIA ANN SHAW names) nfsigner(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 4re/shehhey executed the same in kir/lrerAheir authorized capacity(ies), and that by ivie/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. M. HIGBY ZITNE my nd a o ial se Commission #t 1866249z �� Notary Public - CaliforniaSi e z '' Sacramento County Sig (Seal) My Comm. Expires Sep 26, 2013 (The balance of this page is intentionally left blank.) Western Surety Company Form 1900.1.2008 0 CNA 4/19/2011 10;09;30 AM PAGE 2/004 Fax Server Western Surety Company. POWER OF ATTORNEY - CERTIFIED COPY Bond No. 710 92'- 16 Know All Men By These Presents, that WESTERN SURETY COMPANY, a corporation duly organized and existing under the laws of the State of South Dakota, and having its principal office in Sioux Falls, South Dakota (the "Company."), does by these presents make, constitute and appoint CYNTHIA ANN SHAW its true and lawful attorney(s)-in-fact, with full power and authority hereby conferred, to execute, acknowledge and deliver for and on its behalf as Surety, bonds for: Principal: R. G. Fleming, Inc. Obligee: City of Newport Beach Arrni-mt: $S00,000.00 and to bind the Company thereby as fully and to the same extent as if such bonds were signed by the. Senior Vice President,sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said attorney(s)-in-fact may do within the above stated limitations. Said appointment is made under and by authority of the following bylaw of Western Surety Company which remains in full force and effect. "Section 7. All bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, any Assistant Secretary, Treasurer, or any Vice President or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be. printed by facsimile." All authority hereby conferred shall expire and terminate, without notice, unless used before midnight of August --6 2011 , but until such time shall be irrevocable and in full force and effect. In Witness Whereof; Western Surety Company has caused these presents to be signed by its Senior Vice President, Paul T. Bruflat, and its corpapo1 to be affixed this 11th day of Apr i 1 2011 ,•° WEST R SURE COMPANY r� Paul T. Bruflat/Senior Vice President ST A- 9VTB STA SE COUNTtTAHA On this 11th day of Apr i 1in the year 2011 before me, a nutary public, persuually appeared Paul T. Bruflat, who being to me duly sworn, acknowledged that he signed the above Power of Attorney as the aforesaid officer of WESTERN SURETY COMPANY and acknowledged said instrument to be the voluntary act and deed of said corporation. ; 44444M4ba44b444444b4b44; � � D. KRELL NRr NOTARY PUBLIC f SOUTH DAKOTA- r otarY Public •South Dakota r ie� ;44444444444444444bb4b4b; My Commission Expires November 30, 2012 I the undersigned officer of Western Surety Company, a Steck corporation of the State of South Dnkota, do hereby certify that the attached Power of Attorney is in full force and effect and is irrevocable, and furthermore, that Section 7• of the bylaws of the Company as set forth in the Power of Attorney is now in farce. In testimony whereof, I have hereunto set my hand and seal of Western Surety Company this 11th day of April 2011 WEST R SURE COMPANY Paul T. Brufla enior Vice President Form F5306-9-2006 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of O y-aAg-p-- t On ���/ ZU�� v before me, ii_C K. 'FCI AS`� 'Vc)-V V�b1i�'� Date Here Insert Name an Title of the lOffificer ' personally appeared '21 c—\'ACi rA (t)ne F 1 e ry'k I h G1 , Name(s) of Signpr(s who proved to me on the basis of satisfactory evidence to be the person(? whose name( is/ara subscribed to the within instrument and ackn wledged to me that he/sheAirey executed the same in his/he#th6r authorized capacity(io, and that by his/he4their signature(5 ` on the instrument the ASHLEY M. FAUST person(s}, or the entity upon behalf of which the commission # 1875159 Z person(sl acted, executed the instrument. a -.m Notary Public - California > Z r .. Orange County c 31, 2013certify I certi under PENALTY OF PERJURY under the My Comm. Expires De, laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Q 9 Signature: Place Notary Seal and/or Stamp Above Sign re of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: _ Labn r pi,t 1r�aA- __60 Document Date: 1%i I Rh- /� Number of Pages: C. Signer(s) Other Than Named Above: U to+n I q A S Ka"o Capacity(ies) Claimed by Signer(s) � Signer's Name: O Corporate Officer — Title(s): Individual R. Partner — E. Limited 1 General Top of thumb here El Attorney in Fact O Trustee Guardian or Conservator El Other: Signer Is Representing: Signer's Name: El Corporate Officer— Title(s): ❑ Individual El Partner — iD Limited ❑ General Top of thumb here ❑ Attorney in Fact Trustee D Guardian or Conservator ❑ Other: Signer Is Representing V 2008 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 -Chatsworth. CA 91313-2402 - www.Nationa]Notay.org Item 45907 Reorder: Call Toll -Free 1-800-876-6827 EXHIBIT C CITY OF NEWPORT BEACH BOND NO. 71092116 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 387.00 being at the rate of $ 3 0.0 0 thousand of the Contract price. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract. WHEREAS, the City of Newport Beach, State of California, has awarded to Insert Contractor Name hereinafter designated as the `Principal," a contract for the Insert Project name, located at Insert address in the City of Newport Beach, in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. NOW, THEREFORE, we, the Principal, and Western Surety Company , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of insert contract $ amount lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors; or assigns, fail to abide by, and well and truly keep and perform any or all the Work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. RFP - Lifeguard Tower Construction Page 39 of 41 b/2:8 02OS9S89TGT :Ol :WONJ 820:2T 2002-t T--inf EXHIBIT C Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the Work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Contract or to the Work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by the City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond, IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the 12day, f A ril , 2011 F.6, T�LEMiNG )Nr-, V 194f1%o6h Name of Contractor (Principal) Auth 'zed Sign ture/Title Western Surety Company Name of Surety 101 South Phillips Avenue Sioux Falls, SD 57117 Address of Surety 800-331-6053 Telephone ' ��gORETyCo Au -• Agent Signdture SEAL 7 s�UTH DP���P Cynthia Ann -qhAw(Af-f-nrnAy-In-Fact) Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED RFP - Lifeguard Tower Construction Page 40 of 41 b/b:d 220S9S89T6T:0I :WDNA d20:2T 2202-bT-nnr CNA 4/11/2011 3:17;17 PM PAGE 2/004 Fax Server Western Surety Company POWER OF ATTORNEY - CERTIFIED COPY Bond No. 71092' 16 Know All Men By Thege Presents, that WESTERN SURETY COMPANY, a corporation duly organized and existing under the laws of the State of South Dakota, and having its principal office in Sioux Falls, South Dakota (the "Company"), does by these presents make; constitute and appoint CYNTHIA ANN SHAW its true and lawful attorney(s)-in-fact, with full power and authority hereby conferred, to execute, acknowledge and deliver for and on its behalf as Surety, bonds for: Principal: R. G. Flening, Inc. Obligee: Cite of Newport Beacz Amoinit: $500,000.00 and to bind the Company thereby as fully and to the same extent as if such bonds were signed by the Senior Vice President, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said attorney(s)-in-fact. may do within the above stated limitations. Said appointment is made under and by authority of the following bylaw of Western Surety Company which remains in full force and effect. "Section 7. All bonds, politics, undertakings, Powers of Attorney or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, any Assistant Secretary, Treasurer, or any Vice President or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile." All authority hereby conferred shall expire and terminate, without notice, unless used before midnight of August —'6 2 01 1 , but until such time shall be irrevocable and in full force and effect. In Witness Whereof, Western Surety Company has caused these presents to be signed by its Senior Vice President, Paul T. Bruflat, and its corppHl to be affixed this 11th day of April 2011 ST ,aQ • ` STA41 k ss COUNTY 4�. ' � WEST R/ SURE COMPANY Paul T. Bruflat/Senior Vice President On this 11th day of Apr i 1 , in the year 2011 , before me, a notary public, personally appeared Paul T. Bruflat, who being to me duly sworn, acknowledged that he signed the above Power of Attorney as the aforesaid officer of WESTERN SURETY COMPANY and acknowledged said instrument to be the voluntary act and deed of said corporation. +aaaaaaaaawaaaraaaaaaaaaa } w D. KRELL r `,s(f ] f L NOTARY PUBLIC SEAL f Notary Public - South Dakota i90UTH DAKOTAe i y' +aaaatirararraararrarar..r My Commission Expires November 30, 2012 I the undersigned officer of Western Surety Company, a stock corporation of the State of South Dakota, do hereby certify that the attached Power of Attorney is in full force and effect and is irrevocable, and furthermore, that Section 7 of the bylaws of the Company as set forth in the Power of Attorney is now in force. In testimony whereof, I have hereunto set my hand and seal of Western Surety Company this 11th day of April 2011 WEST R/ SUREY4 COMPANY Paul T. BruflatrAenior Vice President Form F5306-9.2006 CNA 4/11/2011 3:17:17 PM PAGE 1/004 Fax Server ❑ Acknowledgment of Principal ❑X Acknowledgment of Surety (Attorney -in -Fact) STATE OF CALIFORNIA COUNTY OF sACP,AMEN^O t ss On 1 \ before me, date here insert name and title of the officer personally appeared CYNTHIA ANN SHAW name(p) of signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. SARAH M. MARINELLI WITNESS my hand and official seal. N ems COMM, # 1812203 NOTARY PUBLIC -CALIFORNIA u' GM �� , SACRAMENTO COUNTY Signature -Mr Comm,, EXP. SEP. 5, 2012 .(Seal) (The balance of this page is intentionally left blank.) Western Surety Company Form 1900.1.2008 Q CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On 144 !201 before me, As -eNdh n4 Date Ili Here Insert Name an6 Title of the Office personally appeared IL I G ASHLEY M. FAUST Commission # 1875159 a"�+s Notary Public - California z '' Orange County My Comm. Expires Dec 31, 2013 t Place Notary Seal and/or Stamp Above who proved to me on the basis of satisfactory evidence to be the personk6) whose name($) is/a+e subscribed to the within instrument and acknowledged to me that he/slae><tlaey executed the same in his/h he+;. authorized capacity(ijag), and that by his/weir signatureW on the instrument the personm, or the entity upon behalf of which the person() acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature:C"'A`A Si t re of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document ,I Title or Type of Document: FQ j,.,FLL 1 Pt r 41 r -m 6L rl Gc on Document Date: Y1 12 �'' . 2-00 Number of Pages: 3 Signer(s) Other Than Named Above: Cyrn-�tit--, AY) n sH0 L0 Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): [ Individual ❑ Partner— C Limited DGeneral Top of thumb here ❑ Attorney in Fact ❑ Trustee C Guardian or Conservator ❑ Other: Signer Is Representing: ❑ Individual ❑ Partner — ❑ Limited J General Top of thumb here Attorney in Fact Trustee O Guardian or Conservator ❑ Other: Signer Is Representing: © 2008 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item 45907 Reorder: Call Toll -Free 1-800-876-6827