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HomeMy WebLinkAboutC-5127 - Service Agreement for the Installation of Granite Counter Tops and Floor TilesSERVICE AGREEMENT WITH SURFACE SOLUTIONS DESIGN GROUP, INC. FOR THE INSTALLATION OF GRANITE COUNTER TOPS AND FLOOR TILES U THIS S^�,R,V,ICE AGREEMENT ( "Agreement') is made and entered into as of this day of I'LJ 2012 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and SURFACE SOLUTIONS DESIGN GROUP, INC, a California corporation ( "Contractor"), whose principal place of business is 26741 Portola Parkway, Suite 1E -685, Foothill Ranch, CA 92610 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to purchase and install granite counter tops at Mariners Library and Bonita Creek Park Community Center and to purchase and install tiles for the restroom at Bonita Creek Park Community Center ('Project'). C. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on August 31, 2012, unless terminated earlier as set forth 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 into this Agreement. Contractor shall perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ( "Services" or "Work "). As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest industry standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest industry standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. 2.2. Contractor shall perform all Work required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 3. TIME OF PERFORMANCE 3.1. Time is of the essence in the performance of Services under this Agreement and Contractor shall perform and complete the Services shown in Exhibit A by May 31, 2012. The failure by Contractor to strictly adhere to the schedule may result in termination of this Agreement by City. 3.1.1. Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party within two (2) calendar days of the occurrence of the delay so that all delays can be addressed. 3.2. Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) not later than two (2) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.3. For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. 4. COMPENSATION 4.1. City shall pay Contractor for the Services in accordance with the provisions of this Section and the Schedule of Rates attached hereto as Exhibit A and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Contractor's total compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Fourteen Thousand Seven Hundred and Forty - Five Dollars and no 1100 ($14, 745.00) without written amendment to the Agreement. 4.2. Contractor shall submit an invoice to City describing the Work performed following the completion of all services and work required under this Agreement and the written acceptance by City of said services and work. Contractor's bills shall include the name of the person and /or classification of employee who performed the Work, a brief description of the Services performed and /or the specific task from the Scope of Work attached hereto to which it relates and the date the Services were performed. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3. City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Work and Schedule of Rates attached hereto. Unless otherwise approved, such costs shall be limited and include nothing more than SURFACE SOLUTIONS DESIGN GROUP, INC Page 2 the actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.4. Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the Project Administrator to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Rates set forth in Exhibit A. 5. PROJECT MANAGER 5.1. Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Andre Labonte to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any key personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2. Contractor, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants this it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Recreation & Senior Services Department. Sean Levin, Recreation Superintendent shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1. Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed or utilized unless approved in advance and in writing by the Project Administrator. 7.2. All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with highest industry standards. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the industry standard. SURFACE SOLUTIONS DESIGN GROUP, INC Page 3 7.3. Contractor represents and warrants to City that it has, shall obtain and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 7.4. Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 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 Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 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 Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy SURFACE SOLUTIONS DESIGN GROUP, INC Page 4 limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 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 Work by Contractor or its agents. 8.6. To the extent authorized by law, as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 8.7. The rights and obligations set forth in this Section shall survive the termination of this Agreement. 9. INDEPENDENT CONTRACTOR It is understood that City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees or agents of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of the City. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 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 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. 12. PROGRESS Contractor is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress SURFACE SOLUTIONS DESIGN GROUP, INC Page 5 of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 13. INSURANCE 13.1. 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 Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Contractor's bid. 13.2. Coverage and Limit Requirements. 13.2.1. 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. 13.2.2. 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. 13.2.3. 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 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 13.2.4. Builders Risk. For Agreements or 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 SURFACE SOLUTIONS DESIGN GROUP, INC Page 6 included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 13.3. Other Insurance Provisions or Requirements. 13.3.1. 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 Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 13.3.2. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 13.3.2.1. 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. 13.3.2.2. 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. 13.3.2.3. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 13.4. 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. SURFACE SOLUTIONS DESIGN GROUP, INC Page 7 13.5. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 13.6. 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. 13.7. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. 13.8. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 13.9. Enforcement of Agreement 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. 13.10. 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. 13.11. City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and /or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. 13.12. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full SURFACE SOLUTIONS DESIGN GROUP, INC Page 8 extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 13.13. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages 14. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint-venture or syndicate or cotenancy, which shall result in changing the control of Contractor. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 15. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Contractor shall be fully responsible to City for all acts and omissions of any subcontractors. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 16. OWNERSHIP OF DOCUMENTS Each and every report, draft, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or SURFACE SOLUTIONS DESIGN GROUP, INC Page 9 any other party. Contractor shall, at Contractor's expense, provide such Documents to City upon prior written request. 17. CONFIDENTIALITY All Documents, including drafts, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 18. RECORDS Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 20. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other Contractors in connection with the Project. 21. CONFLICTS OF INTEREST 21.1. 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 Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 21.2. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless SURFACE SOLUTIONS DESIGN GROUP, INC Page 10 City for any and all claims for damages resulting from Contractor's violation of this Section. 22. NOTICES 22.1. All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, 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: Sean Levin, Recreation Superintendent Recreation & Senior Services Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Phone: 949- 644 -3159 Fax: 949- 644 -3155 Email: slevin @newportbeachca.gov 22.2. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Andre Labonte Surface Solutions Design Group, LLC 26741 Portola Parkway, Suite # 1 E -685 Foothill Ranch, CA 92610 Phone: 949 - 573 -7096 Email: alabonte @surfacesolutionsdg.com 23. NOTICE OF CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, 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.). 24. TERMINATION 24.1. In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured SURFACE SOLUTIONS DESIGN GROUP, INC Page 11 within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 24.2. Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than thirty (30) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased and Documents created in performance of this Agreement. 25. 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 Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et 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 Agreement. 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. 26. LABOR 26.1. Contractor shall conform with all applicable provisions of State and Federal law including, but not limited to, applicable provisions of the Federal Fair Labor Standards Act ( "FLSA ") (29 USCA § 201, et seq.). 26.2. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give written notice to City, and provide all relevant information. 26.3. Contractor represents that all persons working under this Agreement are verified to be U.S. citizens or persons legally authorized to work in the United States. SURFACE SOLUTIONS DESIGN GROUP, INC Page 12 26.4. To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorney's fees, and other costs of defense by reason of actual or alleged violations of any applicable Federal, State and local labor laws or law, rules, and /or regulations. This obligation shall survive the expiration and /or termination of the Agreement. 27. STANDARD PROVISIONS 27.1. 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. 27.2. Waiver. A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 27.3. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Agreements of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 27.4. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 27.5. Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 27.6. Effect of Contractor's Execution. Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the Work is to be performed, and has taken into consideration these factors in submitting its Project proposal and Scope of Work. 27.7. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 27.8. Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 27.9. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or SURFACE SOLUTIONS DESIGN GROUP, INC Page 13 against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 27.10. 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. 27.11. 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. 27.12. 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 (1) and the same instrument. [SIGNATURES ON NEXT PAGE] SURFACE SOLUTIONS DESIGN GROUP, INC Page 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By:. f � �/ff— Aaron C. Harp City Attorney MA ATTEST: I� Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: S -' • t2 By_ `",�rt�+- - Y—� -durA Detweiler,irector R cry ation & Se ' r Services Department CONTRACTOR: Surface Solutions Design Group, Inc., a California corporation Date: U I o� 1 L By, v`x� -rki1 - t t/ °" '' By: C Leilani I. Brown Andre City Cie Exhibit A - and Tax ID Number 45- 4839823 OF SIGNATURES] fates SURFACE SOLUTIONS DESIGN GROUP, INC Page 15 EXHIBIT A SCOPE OF WORK / BILLING RATES @ z Sul faire. Solul iul)s Design G oup, U.C. 2fRR012 26741 Panda Pkvry 'Ned' M9111685 I'onII11II FLIIYh, CA 9)I10 I' Pl.vit 949.573.7096 alalxruril ?urlactuAulialsd5.[run Qty w�.weia farru4utia nd5iyigrap.can I Name. / Address CI!y nl W+gxrl 0nx Too Wlitr 3300 Ncv.3x71T Blvd. Nttawrt. CA 92658 Estimate Date Cslinwte N 2fRR012 IUin Surface Solutions Design Group, INC. Page A -1 Rep Project AN, EXS npliat Qty kale Total SLielare Sointir6 tl�ign CrMnt-LC IXopY -l0f%voisll till rralt]Ialf arld Ir..'oonn all rkY,Siae/ lotxY' to umplele tlx: bllovntw: GraniteCcAaitn Tops; 2P darine,5 Lilxary AM 2 m l9rtila(rttk Par k. Price ialuKs dario, top 3,650.00 3,650.00 of sink I", ml (2 in each ItA)) and Madaplash. ' Colas: Nat im s lymnw = [Aw Pearl Naiirins Nns = Black h \Mille e flonila Otto = Tropical in wan Tile; Roors ntiw we AM Walls VAi,, a yxxlfied. A 64W VAA"1 s kestroMS at I30"ila Crr.Ck II,095.0) 11,095.0 Pack. Rice ImIucks ONno. Cori: Dal Tile Floxs = Ikune. M22 17'x12' Walls )atstard W171 Artisan Ikmso 01 M-CladnW PatUSn' 6" x6" Cosa = UrW Potty 6 %6- - hldi¢ks oWSIQ carxas/ IMIAe c ln0ks trot avallade Nadner i Ulti aiy = I3013Imie Ave., 6xvtpArt Bead,, CA 92.660 (tnila Ocek Park+ 3010 La Vida, 14C 1)0t1 I3cads, CA 92660 'All aL ettM Is IU Ite con fActM In a frMt..Il lal and NW let., Nloanania waydiott 1. 11* slalom dlracllct of UH: IMAKUywims oIIketaiR all, cod. AT/ a11" at it.% a r1t'wtlaK IranOne abort specfl kalktM imrolvinc extra cost of iraaabi a labr volt ady be executed tgrn v it lrrr onckis fa th,, -slot and will Mrcnc an extra chargo ovcx Up alwse nraitiaad ono. All ag, cenens motk t mode in vaiUrxl. Cuslmxr Ix: +dry autlxxizin Sodace 5olultan Dcslgo Group to fatt9a all nalarats AM labx Moved to complete Ilie ark roan kkied alxA'e fa vAtkh CoaloO r avrtxt to pay the inlUtIl nxrnloned aM larM 111.1. Please dgo.111 title (atymf . e) Irlov. I .Irks fa iN- opp-Aoony to vaxk with sue - - - -- Subtotal S14, 745.0k) Sales Tax (7.75 %) Saw Total $14,745,03 Surface Solutions Design Group, INC. Page A -1