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HomeMy WebLinkAboutC-4844 - Contract for the Improvement of Public Beaches for Emergency Sand Replenishment at Various Locations in China Cove and on Balboa IslandCITY CLERK CONTRACT FOR THE IMPROVEMENT OF PUBLIC BEACHES WITH TIGHT QUARTERS, INC., FOR EMERGENCY SAND REPLENISHMENT AT VARIOUS LOCATIONS IN CHINA COVE AND ON BALBOA ISLAND THIS CONTRACT FOR IMPROVEMENT OF PUBLIC BEACH ( "Contract') is made and entered into as of this q day of VIVV , 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and Tight Quarters, Inc.,, a California corporation, ( "Contractor ") whose principal place of business is 2031 S. Anne Street, Santa Ana, CA 92704, 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 excavate sand from low tide line and spread on beaches at multiple bulkheads. C. City desires to engage Contractor to perform the sand replenishment at nine separate locations on Balboa Island and China Cove ( "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 sixty business days commencing on June 1, 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 August 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 Scope of Work for China Cove and Balboa Island Emergency Sand Replenishment Project all 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 Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, equipment and all utility and transportation services necessary for the Project. 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 60 business days from the date of issuance of the "Notice to Proceed." C�K�]u1�►�Y_11L�1i•1 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 Twenty Thousand, Eight Hundred Seventy -Five and 00/100 Dollars ($20,875.00). 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 Dan Powers 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 Public Works Department. Shannon Levin, or her designee shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Contract. ht Quarters, Inc. Paae 2 of 21 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. 7.3 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). it Quarters, Inc. Page 3 of 21 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. fiGeiZ�Z�] »; 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 order to ensure the Project proceeds in a manner consistent with City goals and policies. it Quarters, Inc. Page 4 of 21 i�F�6�sIG7_LL " 12.1 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 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 Requirements. 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 Liabilitv. 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 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. ht Quarters, Inc. Page 5 of 21 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 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. 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 with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. Tight Quarters, Inc. 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 builder's risk policy will contain or be endorsed to contain a provision providing for thirty (30) days written notice to City of cancellation or nonrenewal, except for nonpayment for which ten (10) days notice is required. 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 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. 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 Limitinq. 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 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. ht Quarters, Inc. Pape 7 of 21 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 Labor and Materials Payment Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Contract and in the form attached hereto as Exhibit "C" which is incorporated herein by this reference; and a Faithful Performance Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Contract in the form attached hereto as Exhibit "D" which is incorporated herein by this reference. 13.2 The Labor and Materials Payment Bond and Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. 13.3 The Contractor shall deliver, concurrently with execution of this Contract, the Labor and Materials Payment Bond and Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the 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 Quarters, Inc. Sae 8 of 21 accordance with the California Labor Code (Sections 1770 of seq.), the Director of 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. ht Quarters, Inc. Paae 9 of 21 18. NOTICES 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: Shannon Levin, Project Administrator Public Works Department City of Newport Beach PO Box 1768 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Phone: (949) 644 -3041 Fax: (949) 723 -0589 E -mail: sllevin @newportbeachca.gov 18.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Dan Powers Tight Quarters, Inc. 2031 S. Anne Street Santa Ana, CA 92704 Phone: 714- 557 -7901 Fax: 714- 241 -3820 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 Quarters, Inc. oe 10 of 21 previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Contract. 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. ht Quarters, Inc. Page 11 of 21 21.7 Controlling 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 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 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 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. Tight Quarters, Inc. Page 12 of 21 IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the dates written below. APPROVED AS TO FORM: DateICToOr��1E CITY ATTORNEY Assistant City Attorney ATTEST: Date: By: 4AV � Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California nicipal corporation Date: to /Z,/// _ M m G. Badum Works Director TIGHT QUARTERS, INC., a California Corporation Date: 1lP6llr By: Telforl Cottam Fre's dent m In Attachments: Exhibit A — Scope of Work Exhibit B — Proposal Exhibit C — Labor and Materials Payment Bond Exhibit D — Faithful Performance Bond f: lusers 1pbwlsharedlcontractsVnformal contractsl20111emergency - tight quarterslemergency sand replenishment - tight quarters.dotx ht Quarters, Inc. Page 13 of 21 WHIMIUM. SCOPE OF WORK EXHIBIT A CITY OF NEWPORT BEACH Public Works Department Harbor Resources Division Sand Import Scope of' Work: Load and haul I000cy ol`saod to from \Vest Newport to China Cove beach and 1000cy to Jade Avenue at South Bay Front. Coordinate sand import with sand repleui,hmcnl project. 829 Harbor Island Drivc, Newport Beach, CA 92660 PH: (949) 644 -3034 FX: (949( 723 -0589 o www.newportbeachca.gov EXHIBIT B PROPOSAL d O PROPOSAL Submitted To EXHIBIT B a/,&/=_ 2031 S. Anne Street, Santa Ana, Ca 92704 (714) 557 -7901 (Fax) 714 241 -3820 Project Information Date: May 13, 2011 Contact Information Newport Beach Harbor Beach Replenishment Phone: (949) 644 -3041 Resources Various locations on Balboa Fax: (949) 723 -0589 829 Harbor Island Dr. Island and China Cove Cell: Newport Beach, Ca. 92660 Email: SLLevin @newportbeachca.gov We hereby submit specifications and estimates for: Import: Yardage amounts are approximates Tight Quarters will provide laborers for clean up and public safety Tight Quarters will provide ramps on and off of beaches City will remove and replace all benches at end of streets City will provide parking permits and street closures where necessary City will provide all permits Alternate for hauling sand to China Cove and Jade St. 125 loads to China Cove at $83.50 per LO wheeler load $10,437.50 125 loads to China Cove at $83.50 per 10 wheeler load $10,437.50 Please see and sign Exhibit "A" Exclusions: Permits. Asbestos Testing /Abatement Excludes dredging VARIATIONS TO THE ABOVE CREATING ADDITIONAL COSTS WILL BE CHARGED ACCORDINGLY WE PROPOSE hereby to furnish material and labor- complete in accordance with above specifications, for the sum of: Twenty Thousand Eight Hundred Seventy Five Dollars **'` $ 20,875.00 PAYMENT DUE 100% ON COMPLETION PRICE GOOD FOR 30 DAYS Or PROGRESS PAYMENT DUE UPON RECEIPT Authorization to Proceed X Date Permit # Proposal and Exhibit "A" must be signed and returned prior to project start Estimator: Dan Powers CITY OF NEWPORT BEACH BOND NO. 71118051 LABOR AND MATERIALS PAYMENT BOND EXHIBIT C WHEREAS, the City of Newport Beach, State of California, has awarded to Tight Quarters, Inc. hereinafter designated as the "Principal," a contract for the PROJECT NAME located at PROJECT SITE, 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 work 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 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 Twenty Thousand, Eight Hundred Seventy -Five and 001100 Dollars ($20,875.00) 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 to give a right of action to them or their assigns in any suit brought upon this Bond, as EXHIBIT C 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 1st day of June '2011. emnavrn Tight Quarters, Inc. (Principal) Name of Surety 333 S. Wabash Ave., 41st Floor Chicago, IL 60604 Address of Surety 605- 336 -0850 Telephone rized Signature/Title ?- ' aIsn Authorized Agent Signature L. Davis, Ass't. Sec. Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED ACKNOWLEDGMENT State of California County of CQ -71k —q e - _ } SS. On c before me, Public, petsorially appeared proved to me on the basis of satisfactory evidence to be the person whose name,(se /are subscribed to the within instrument and acknowledged tom that hp she /they executed the same in i�Vher /their authorized capacitylieg), and that by & /her /their signatures(sy on the instrument the person(o), 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. _ __ KELSEY A. PRITCHASD WITN S my hand n 1\ I seal. o COMM. a 1884022 :E NOTARY PUBLIC CALIFORNIA o / 3 ORANGECOUNTY ^� y.� I '� My WMM. expires Mar. 26, 2014 I� �rrsv -ems• Sign lure I f ACKNOWLEDGMENT State of California County of } ss. :97 Public, personally appeared before me, Notary ,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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ACKNOWLEDGMENT OF SURETY STATE OF SOUTH DAKOTA (Corporate Officer) Cow. y of Minnehaha SS On this 1St day of June 2011 , before me, a Notary Public in L. Davis, Ass't. Sec. and for said County, personally appeared personally known to me, who being by me duly sworn, did say that he is the aforesaid officer of WESTERN SURETY COMPANY, a corporation duly organized and existing under the laws of the State of South Dakota, that the seal affixed to the foregoing instrument is the corporate seal of said corporation, that the said instrument was signed, sealed and executed on behalf of said corporation by authority of its Board of Directors, and further acknowledge that the said instrument and the execution thereof to be the voluntary act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. My commission expires Fwm 103 -12 -98 Z Notary Public i POWER OF ATTORNEY - CERTIFIED COPY Bond No. 71118 051 Know All Nlen 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 L. Davis 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: Tight Quarters, Inc. Obligee: City of Newport Beach Amount: $500,000.00 and to bind the Company thereby as fully and to the same extent as if such bonds were signed by the Senior Vice President, sealed with the corporate sea] of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said attorneys) -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 tome 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 November 1 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, `nd�.4, ozp+o,ate seal to be affixed this 1st day of June 2011 ....... W E S R S U R E Y C O M P A N Y r Paul T. Bruflat enior Vice President ST A't L+tp S0. TIT ... TA rM ss COON7`Yr,OMfN�?EIdAHA On this 1st day of June , 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 s id corporation. +41yYy4h4 \ \M1M14bM1M1S444hM144� /� ++ D. KRELL + ^ NOTARY PUBLIC + i sEnL SOUTH DAKOTA sEnL i otary Public - South Dakota .......... ............ 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 1st day of June 2011 W S R SURE Y COMPANY Paul T. Bruflat enior Vice President Form F5306 -9 -2006 CITY OF NEWPORT BEACH BOND NO. 71118051 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 626.00 being at the rate of $ 30.00 thousand of the Contract price. WHEREAS, the City of Newport Beach, State of California, has awarded to Tight Quarters, Inc. hereinafter designated as the "Principal," a contract for the PROJECT NAME located at PROJECT SITE 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 for the faithful performance of the Contract. NOW, THEREFORE, we, the Principal, and WESTERN SURETY COMPANY , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety "), are held and firmly bound unto the City of Newport Beach, in the sum of Twenty Thousand, Eight Hundred Seventy -Five and 001100 Dollars ($20,875.00) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by 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 specked, 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. EXHIBIT D 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 1st day of June , 2011. �P�eu'zr.� Cc7CC� Tight Quarters, Inc. (Principal) WESTERN SURETY COMPANY Name of Surety 333 S. Wabash Ave., 41st Floor Chicago, IL 60604 Address of Surety 605- 336 -0850 Telephone Authorized Agent Signature L. Davis, Ass't. S ®C. Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED ACKNOWLEDGMENT State of California County of CXLEA Y';C ) ss. On k-aII Imo\\ Notary Public, ersonally appeared ,who proved to me on the basis of satisfactory evidence to be the person (srwhose name(a) Cyare subscribed to the within instrument and acknowledged to me that %she /they executed the same in Cis' er /their authorized capacity0aw), and that by I her /their signatures(Won the instrument the person.(wr or the entity upon behalf of which the person(Wacted, 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. KELSEY A. PRITCHARD WITNES my d nd o Icial seal. o COMM.# CALIFORNIA 0 NOTARY PUBLIC CALIFORNIA ro 3 m. mires mar COUNTY ` ' MY Comm. e�ires Mar. 26, 2014 L Sign re 1 / ( (seal) ACKNOWLEDGMENT State of California County of } ss. On before me, Notary Public, personally appeared ,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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT OF SURETY STATE OF FOUTH DAKOTA (Corporate Officer) County of Minnehaha SS 1st June 2011 On this day of ,before me, a Notary Public in L. Davis, ASST Sec. and for said County, personally appeared personally known to me, who being by me duly sworn, did say that he is the aforesaid officer of WESTERN SURETY COMPANY, a corporation duly organized and existing under the laws of the State of South Dakota, that the seal affixed to the foregoing instrument is the corporate seal of said corporation, that the said instrument was signed, sealed and executed on behalf of said corporation by authority of its Board of Directors, and further acknowledge that the said instrument and the execution thereof to be the voluntary act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. My commission expires ni ,e Y9..o,,, i y'fe3Ts:f'S'c.iC? u{JhSi.' "a 3 ° 23-20e8 Notary Public Form 103 -12 -98 l _ =�oswa POWER OF ATTORNEY - CERTIFIED COPY Bond No. 71118051 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 L Davis 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: Tight Quarters, Inc. Obligee: City of Newport Beach Amount: $500,000.00 and to bind the Company thereby as fully and to the same extent as if 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 November 1 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,i¢yjgprpnrate seal to be affixed this 1st day of June 2011 SN ��cp;•' p,� W E S R SURE AY COMPANY Paul T. BruflafAenior Vice President 'XkTE� SOUTH•.? OTA l ndtA • .° 1 as 'UN lrliro Mr11jNH31�AHA On this is t day of -Jun?-, 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. +44sYb4444h f ,M14.......... i D. KRELL raFAL NOTARY PUBLIC sE�nL + otary Public - South Dakota r SOUTH DAKOTA r I4i41444494htbb6bLSa4Y44+ 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 1st day of June 2011 _ WES R SURE Y COMPANY Paul T. Bruflat enior Vice President Form F5306 -9 -2006