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HomeMy WebLinkAboutC-5159 - Contract for the Construction of Lifeguard TowersCONTRACT FOR THE CONSTRUCTION OF LIFEGUARD TOWERS WITH R. G. FLEMING, INC. THIS CONTRACT FOR THE CONSTRUCTJ O�^N OF LIF UARD TOWERS ( "Contract') is made and entered into as of this �r day of A 2013 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City"), and R. G. FLEMING, INC., a California corporation t ( "Contractor") whose principal place of business is 33866 Zarito Drive, Dana Point, CA 92629 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on Its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to construct two (2) lifeguard towers as more fully described in the Specifications and Scope of Work ( "Project'). C. 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. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Contract over a period of thirty (30) Calendar days commencing upon issuance of the "Notice to Proceed ". NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: The term of this Contract shall commence on the Effective Date and shall terminate on July 31, 2013 unless terminated earlier as provided for herein. 2. SCOPE OF WORK 2.1. Contract Documents. The complete Contract for the Project includes all of the following documents: The Specifications and Scope of Work, attached hereto as Exhibit A; the Bid Proposal Pricing, attached hereto as Exhibit B; and all Project permits; all incorporated herein by this reference, and this Contract, and all modifications and amendments thereto (collectively the "Contract Documents "). The Contract Documents comprise the sole agreement between the parties as to the subject matter therein. Any representations or agreements not specifically contained in the Contract Documents are null and void. Any amendments must be made in writing, and signed by both parties in the manner specified in the Contract Documents. 2.2. Scope of Work. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services required for the Project as identified in the Contract Documents ( "Work" or "Services "). 23. All of the Work to be performed and materials to be furnished shall be in strict accordance with the provisions of the Contract Documents. Contractor is required to perform all activities, at no extra cost to City, which are reasonably inferable from the Contract Documents as being necessary to produce the intended results. 1 TIME OF PERFORMANCE Time is of the essence in the performance of Work under this Contract and Contractor shall complete the Work within thirty (30) Calendar days from the date of issuance of the "Notice to Proceed." Failure to complete the Work in the time allotted may result in termination of the Contract by City. 4. COMPENSATION 4.1. As full compensation for the performance and completion of the Project as required by the Contract Documents, City shall pay to Contractor and Contractor accepts as full payment the sum of Ten Thousand Seven Hundred Fifty Dollars and 00/100 ($10,750.00), 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. 4.1.1. The sum of Two Thousand One Hundred Fifty Dollars and 00/100 ($2,150.00) shall be payable to the Contractor upon Agreement execution. 4.1.2. The remaining not -to- exceed sum of Eight Thousand Six Hundred Dollars and 00 1400 ($8,600.00) shall be payable within thirty (30) days after Project completion and acceptance by the City. 4.2. This compensation includes: 4.2.1. Any loss or damage arising from the nature of the Work, 4.2.2. Any loss or damage arising from any unforeseen difficulties or obstructions in the performance of the Work, 4.2.3. Any expense incurred as a result of any suspension or discontinuance of the Work, but excludes any loss resulting from earthquakes of a magnitude in excess of 3.5 on the Richter Scale and tsunamis, and which loss or expense occurs prior to acceptance of the 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 R. G. FLEMING, INC. Page 2 during the term of the Contract. Contractor has designated Richard Fleming to be its Project Manager. Contractor shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. 6. ADMINISTRATION This Contract shall be administered by the Fire and Lifeguard Operations Division of the Fire Department. The Lifeguard Battalion Chief shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Contract. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1. Contractor shall use only the standard materials and equipment as described in the Contract Documents in performing Work under this Contract. Any deviation from the materials or equipment described in the Contract Documents shall not be utilized unless approved in advance by the Project Administrator. 7.2. Contractor shall comply with the terms and conditions of the Contract Documents. 7.3. All of the Work 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 Work in a manner commensurate with the highest professional standards. 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. 7.4. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Contract; all applicable federal, state and local laws; and the highest professional standard. 7.5. 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. 7.6. Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. R. G. FLEMING, INC. Page 3 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 Work 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, subconsuitants, 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 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 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 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. R. G. FLEMING, INC. Page 4 8.7. The rights and obligations set forth in this Section shall survive the termination of this Contract. 9. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Contract. No civil service status or other right of employment shall accrue to Contractor or its employees. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Work. 10. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. 11. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with the City's Project Administrator in advance of all critical decision points in 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 of the Project, activities performed and planned, and any meetings have been scheduled or are desired. -*Q 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) R. G. FLEMING, INC. Page 5 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 Vil (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. 14.1. 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. 14.2. Coverage and Limit Requirements. 14.2.1. 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. 14.2.2. 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. 14.2.3. 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. R. G. FLEMING, INC. Page 6 14.2.4. 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 included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 14.3, Other Insurance Provisions or Requirements. 14.3.1. 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. 14.32 General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 14.3.2.1. 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. 14.3.2.2. Contractor's insurance coverage shall be primary insurance and /or primary source of recovery as respects City, its elected or appointed officers, agents, officals, 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. 14.3.2.3. 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. R. G. FLEMING, INC. _ Page 7 14.4. 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, 14.5. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City wit h 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. 14.6. 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. 14.7. 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. 14.8, 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. 14.9. 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. 14.10. 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. R. G. FLEMING, INC. Page 8 14.11. 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. 14.12. 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 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. 14.13. 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Contract, the Work to be performed under this Contract shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Contractor. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 16. SUBCONTRACTING The subcontractors authorized by the City, if any, to perform the Work on this Project are identified in the Bid Proposal Pricing attached hereto as Exhibit B. Contractor shall be fully responsible to City for all acts and omissions of any 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. 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 Work to be performed under this Contract shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. R. G. FLEMING, INC. Page 9 17. OWNERSHIP OF DOCUMENTS 17.1. Each and every report, draft, map, record, plan, document and other writing produced (hereinafter 'Documents "), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party. Contractor shall, at Contractors expense, provide such Documents to City upon prior written request. 17.2. Documents, including drawings and specifications, prepared by Contractor pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Contractor will be at City's sole risk and without liability to Contractor. Further, any and all liability arising out of changes made to Contractor's deliverables under this Agreement by City or persons other than Contractor is waived against Contractor and City assumes full responsibility for such changes unless City has given Contractor prior notice and has received from Contractor written consent for such changes. 18. 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. 19. 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. 20. CONFLICTS OF INTEREST 20.1. 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 R. G. FLEMING, INC. Page 10 performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeabiy financially affect such interest. 20.2. 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. 21. NOTICES 21.1. 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 -cuss mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Lifeguard Battalion Chief Lifeguard and Fire Operations City of Newport Beach PO Box 1768 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Phone: (949) 644 -3046 21.2. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Richard Fleming R. G. FLEMING, INC. 33866 Zarito Drive Dana Point, CA 92629 Phone: (949) 678 -5577 22. 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 Government Claims Act (Govt. Code § 900 et seq.). R. G. FLEMING, INC. Page 11 23. TERMINATION 23.1. 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. 23.2. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Contract at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Contract. 24. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Contract and all other Contract Documents by Contractor is a representation that Contractor has visited the Project Site as defined by the Contract Documents, has become familiar with the local conditions under which the Work is to be performed, and has correlated all relevant observations with the requirements of the Contract Documents. 25. STANDARD PROVISIONS 25.1. 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. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 25.2, Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 25.3. 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 agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. R. G. FLEMING, INC. Page 12 25.4. Conflicts or Inconsistencies, In the event there are any conflicts or inconsistencies between this Contract or any other attachments attached hereto, the terms of this Contract shall govern. 25.5. 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. 25.6. 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. 25.7. Severabiiity. If any term or portion of this Contract 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. 25.8. 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. 25.9. Equal Opportunity Employ. 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. 25.10. No Attorney's Fees. In the event of any dispute or legal action arising under this Contractor, the prevailing party shall not be entitled to attorney's fees. 25.11. Counterparts. This Contract may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] R. G. FLEMING, INC. Page 13 IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 3/Zl //3 By: —..""4c �— Aaron C. arp City Attorney ATTEST: ' 3 Date: CITY OF NEWPORT BEACH, A Californi uncal corporation Date: By: iL4' Scott Poster 11�0 Fire Chief CONTRACTOR: R. G. FLEMING, INC., a California corporati n Date: By: AW By: / 1 �/ Leilani I. Brown Richard FI ming City Clerk President Date: `i - /s-13 B . �� sy Cynt 'a Fie ming fs >� cr ary [END OF SIGNATURES] Attachments: Exhibit A – Specifications and Scope of Work Exhibit B – Bid Proposal Pricing R. G. FLEMING, INC. Page 14 SPECIFICATIONS AND SCOPE OF WORK 1. Construction of two (2) new lifeguard towers. Towers to be built to the general requirements, standards and plans provided by the City. 2. Materials for construction of the towers shall be provided by the City. Contractor will provide construction labor. Contractor shall be a Class C, General Contractor, or better. Contractor shall also have, or have the ability to obtain, a business license from the City of Newport Beach prior to the start of construction. 3. Construction will take place just to the west of the Newport Pier (between the pier and the Dory fleet). 4. Contractor may use stationary power tools, and must provide own small hand portable power tools, which shall include: 4.1. Radial arm saw 4.2. Drill press 4.3. Table saw 4.4. Chop saw 4.5. Band saw 5. Contractor shall complete the Work within thirty (30) calendar days from the date of issuance of the "Notice to Proceed." 6. City shall provide a relatively level construction pad on the sand. 7. Contractor may open back door of workshop for easy access to construction site 8. Contractor may park up to two (2) vehicles in Lifeguard Headquarters parking lot during construction only. 9. Lifeguards may move a tower adjacent to the construction site for contractor to use as a rough template, if requested. 10. Contractor shall be responsible for proper cleanup of the work area at the end of each work day. This shall include the removal of trash and debris from the work site. 11. Project Administrator and /or his /her designee shall observe construction progress on a regular basis. Any issues, problems, or corrections shall be noted, and corrected by the Contractor prior to final acceptance of the work. 12. Lifeguard towers shall be completed no later than May 10, 2013. Plans All specifications and work shall conform to the plans included in this Exhibit, unless otherwise specified by the Project Administrator, B -1 I P w= cs 17 \� � � � \ A-2 I P a (j \�� ��� � )� <\ 17 \� � � � \ A-2 I P a (j Exhibit B: Bid Proposal Pricing Estimated Number of flours: 270 Proposal Offer: $10,750.0 0 $2,150.00 due upon Agreement execution $8,600.00 due net 30 days of Project completion (includes labor, insurances, bonding, travel, tools, etc for the construction of two (2) towers.) EXHIBIT C CITY OF NEWPORT BEACH BOND NO. 71398817 LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to R. G. FLEMING, INC. hereinafter designated as the "Principal," a contract for the Construction of Lifeguard Towers, 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 tern -is thereof require the furnishing of a bond. providing that if Principal or any of Pnncipal'5 5ubountracturs, shall fail to pay for any materials, provisions, or other supplies used in, upon, for. or about the performance of the worx.:agreed to be done, or for any work or labor done thereon of any kind, the Surety o.n this bond will pay the same to the extent hereinafter set forth. NO'•P✓• THEREFORE, We the undersigned Princil.ml. aild, 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 and firmly bound unto the City of Newport Beach, in the sum of Ten Thousand Seven Hundred and Fifty Dollars and 001100 ($10,750,00) 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,. firmlyby 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 casel 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, ns EXHIBIT C required by and in accordance with the provisions of Sections 3247 er. 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 ac reed that the death of any such principal shall not. exonerate the Surety from its ubtigationS under this Bond. IN VVITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the__ 08th day of April _ __-, 2013. Richard Fleming Name of Contractor (Principal) Western Surety Company Name of Surety 101 South Phillips Avenue Sioux Falls, SD 57117 Address of Surety 1-800-331-6053 Telephone i horize 5ignatu Klf&7 Authorized Agent Signature Aleka Dawn Bridges Print Name and Titir: -- - Attorney- In -Fact NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED h���sURElyco� 3 Z ACKNOWLEDGMENT State of Ca�ifornia County ss. Oft... .....fore mem Sr%� �jjri Tar Public. personally appeared _� -_ l,._..e►2�—) r!s _.__�_�._......-_ -. -_-._ ,Who proved 'a ine on the basis of satisfactory evidence to he the persan(aTwhase nam;.. re subscribed to the within instrument and acknowledged to me Vial he c t hey executed the same in his heir authorized capacityjs , e and that by his heir signatures(.rr) on the instrument t9e personK,,or the entity upon behalf of which the person(s) acted. executed the instrument I Certrfy under PENALTY OF PERJURY under the laws of the State of California that the rnre_going paragraph is true and correct. WITNESS n and official seal. �- Sig -alure S.JOHNSON Commission # 1886481 z a :.m Notary Public - California z Z '� Sacramento County My Comm. Expires May 12, 2014 ACKNOWLEDGMENT State of California County of _ 0KA'06e } ss. 0 17/l.l(_ _ �O V i 3 before me, -_.. �lii(.®tft: —IAV 1?-�L __.-----.--. Notary Public, personally ppeared who proved to me on the basis of satisfactory evidence to be the person(s) whose narne(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the sa+pie it his?heNtheir authorized capacity(ies), and that by his/hedtheir signatures(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted. executed the instrument I certify unCer PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct- ictalseal. Signature NICOLAS LOVRIC �;. Commission # 1863108 Notary Public - California z Z Orange County D My Comm. Expires Sep 25, 2013' CITY OF NEWPORT BEACH, BOND NO. 71398817 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 323 . 00 being at the rate of w 30 . 00 per AhOLISand of the Contract Price. WHEREAS, the City of Newport Beach, State of California,. has awarded to. R. G. FLEMING. INC. hereinafter designated as the "Principal," a 49ntract for the Construction of Lifeguard Towers, 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 faithfcd; performance of the Contract. NOW, THEREFORE, we, the Principal, and Western _S_urety Com an _ duly authorized to transact business under the laws of the State of —at .as Surety (hereinafter "Surety"), are held and firmly bound unto the City of NeWport Beach, in the sum of Ten Thousand Seven Hundred Fifty Dollars and OU/100 ($10,750,00) 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 :o 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 alteratioil thereof made as therein provided on its part, to be kept and performed at the time.and in the manner therein speolfied, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save Harmless the City of Ne'wl urt 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. 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 EXHIBIT D 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 cin 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 the08tw. April 2013. Richard Fleming_____ Name of Contractor (Principal) Western Surety Company _aiTl_..._.....,_.o..f_Su_,....r.e.._t..y.-------- --...._.._._...... ..... ........., Ne 101 South Phillips Avenue Sioux Falls, SD 57117 _ of ...... _S..--ur..e_....ty.� .---.--•------ Address rized,046natute,7flie Auth6dzed Agent Signature CORPOR,q,, Aleka Dawn Bridges SEAL Print Narne and Title Attorney -In -Fact 1-800-331-6053 NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED EXHIBIT D ACKNOWLEDGMENT State of Caaj oD nia County of.��Gllr'l�i%...__ sa Q$ oef re me, . ��1� _�_ S• �i�2w'77.,.... Notary Public, personally appearer. ___._.... wno proved to me on the basis of satisfactory evidence to be the person(�whose name(re Subscribed to I within instrument and acknowledged to me that h e! ey executed the same in hi heir authorized capacityU.W, and that by his/ ,r,their signa,ures(- un the instrument me persor*<or the entity upon behalf of which the personfo acted, executed the instrument. I certify unser PENALTY OF PERJURY under the laws of the State of Califonnia Lhallhe Iorerjoing paragraph is true and correct. S. JOHNSON Commission # 1886481 VVI -:NESS d and official seal,a Notary Public - California i z Sacramento County "-� ; �-� My Comm. Expires May 12, 2014 (seal) ACKNOWLEDGMENT State of Ca!fornia County c' De - ss On A-rrz t L iU 2P 13 before me, l cOc& L -OV X- LC. _-Notary Pubtic. personally appeared 2tu4-2 -_ i i� - )'� -,-I 10C> �_.__... _ ._._... _......_... _..... _._....-- ..... ---------- who proved to rrre on the basis Of satisfactory evidence to be the person(s) whose names) islare subscribed to the within instrument and acknowledged to me that helshelthey executed the sarne in his!hei/ti ieir authorized capacily(ies), and that by his/heritheir signatures(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted, executed the insirurnent. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 1N ITN ES iy i d official seal NICOLAS LOVRIC Commission # 1863108 a . -aa Notary Public - California z z ` Y� : n Orange County Signature v My Comm. Expires Sep; 13 .raw-sdT CNA 4/8/2013 2:49:01 PM PAGE 4/004 Fax Server Western Surety Company POWER OF ATTORNEY - CERTIFIED COPY Bond No. 71398817 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 Aleka Dawn Bridges its true and lawful attorney(s)-in-fact, with full power and authority hereby conferred, to execute, acknowledge and deliver for and on its behalf as Surety, bonds for: Principal: R. G. Flening, Inc. Obligee: City of Newport Beacz Amoiult: $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 attomey(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 frill 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 ofany such officer and the corporate seal may be. printed by facsimile." All authority hereby conferred shall expire and terminate, without notice, unless used before midnight of August 8 2 013 , 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 Vice President, Paul T. Bruflat, and its corporate sgy 111.} affixed this 8th day of April 2013 i A, WEST R �SURE COMPANY Paul T. ruflat, Vice President ST C2UTF3 � ETA - s5 COUNTV'Q7�AHA On this 8th day of Apr i 1 in the year 2013 before ine, 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 dee f said co o at'on. }4titilM49tiNs4\44htiti�4•tivti } S. PETRIK i a NOTARY PUBLIC SOUTH DAKOTA a a a SEAL SEAL f otary Public - South Dakota a a My Commission Expires August 11, 2016 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 fnrth in the Power of Attorney i3 now in force. In testimony whereof, I have hereunto set my hand and seal of Western Surety Company this 8th day of April 2013 WEST R SURE COMPANY r Paul T. at, Vice President Form F5305.8-2012 CNA 4/8/2013 2:49:01 PM PAGE 3/004 Fax Server ❑ Acknowledgment of Principal ❑X Acknowledgment of Surety (Attorney -in -Fact) STATE OF CALIFORNIA COUNTY OF Sacramento j ss / On before me, ate here insert name and titlec�Ae officer personally appeared Aleka Dawn BrLdges name(F) of signer(s) who proved to me on the basis of satisfactory evidence to be the persoi-4<whose name,( l -e subscribed to the within instrument and acknowledged to me that he�hey executed the same in his/their authorized capacity�eg), and that by hiL heir signature�s)—on the instrument the personFs�j or the r entity upon behalf of which the person�sra—cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing 412 paragraph is true and correct. OHNSON . � Commission # 1886481 Z0- Signature m Notary Public - California z V6'ITNESS �hai offi ial seal. Z ' Sacramento County D My Comm. Expires May 12. 2014 (Seal) (The balance of this page is intentionally left blank.) Western Surety Company Form 1900.1-2008 0 State of California County of On I' ACKNOWLEDGMENT ss. 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 State of California County of On (seal) ACKNOWLEDGMENT ss. 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) `ems' CERTIFICATE OF LIABILITY INSURANCE DATE IMAVDDIV V, " "'� C4/71 [t3 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME' Beach Cities Insurance Services INC, NP Evtt. (949;720 -1401 FAX Neff (949)720 -1489 P.O. Box 185 E"M.AIL b an!�Seacains com ADDRESS: rY Corona Dei Mar, CA 92525 INSURERIS) AFFORDING COVERAGE NAIC ri Phone (949)720 -1401 Fax (949)720 -1489 INSURER A! Ignited Specially Insurance Co. INSURED INSURER B Integer, National Insurance CO. R.G. Fleming. Inc. INSURER C: 33866 ZanJto Drive INSURER D Dana Point. CA 92625- 949 INSURER E: American Zunch Insurance Co COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING AN} REQUIREMENT TERM OR CONDITON OFANY CCNTRACT OR OTHER DOCUMENT WITH RFSPEOT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PEPTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. MISS TYPE OF INSURANCE ADOLSUBR POLICY EFF POLICY EYE LTR INSR VAID POLICY NUMBER UVVJDDIYYYYI.(MMIDDIYYYY) LIMITS GENERAL LIABILITY EACH OCCURPTNCE s 1,000.000.00 V Cn >:P4ERCA GENERALOA91LITY DANAGLIO, RENTED � 140,000.00 A cLIMS -aaDE V ocr,UN Y Y 0810512012 08/0572013 CIP149741 r °DExP $ 5,000.00 ' GENL AGGREGATE ILAIT APPLIE, P_, POLICY JECT !OC AUTOMOBILE LIABILITY C YAUTO L CwNFD sCHr RULED 12000282 B AUTO, V AUTLS Y N FO :riLbAUTOS V NON- OP:NED N Teri UMBRELLA LAB C-CUP. EXCESS LIAB CLAMIP MADF ' eo RETENTIONS WORKERS COMPENSATION AND EM."- LOYERS' LIABILITY V I N An Pr2PRIFrQG PARTN %RIF ,.FCUTIVF Or F LA-V9. ER EXCLUDED" N I A (Mandatory la NH) I E ,,SCR P I ION OF OPERATIONS t. E Builders Risk Y N ER04411486 PiR80NA? SAOV INJURY s 1,000,000.00 GENERA!. AGGREGATE s 2.000.000.00 PROOICTS -GONP )PAGGG s 2,000,000.00 COMHNEDJINGLE LIMIT 1,QOQODO.DO SCDILY INJURY I:'errwrmr. S 05115/2012 05/15/2013 BC,AILY INJURY (F aa", n) $ PROPERTY {Pe. EACH OCCURRENCE $ AGGREGATE $ 04/15/2013 04115/2014 DESCRIPTION OF OPERATIONS I LOCATIONS f VEHICLES (Attach ACORD 101, Addi i,val Remarks Scrv, u.I , if more space is required) Contractor - Construction - Commercial Job 70 Newport Pier. Newport Beach. CA 9£,663 SIC STATU- 0TH. TURY L:5A11.S ER E L. EACH ACCIDENT_ $ E . DISEASE - EA EMPLOYEE S EL DISEASE - POLICY LIMIT $ 10,750.00 The City of Newport Beach. its elected officers, agents officials, empEoyees and volunteers are named additional insured per CG20330704. Policy Induces Primary & Nun - Contributory Wording per AF0013970712 & Waiver of Subrogation per CG24040509. CERTIFICATE HOLDER CANCELLATION City of Newport Beach 330 Newport Blvd. Newport Beach, CA 92563 ACORD 25 (2010105) QF SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS, AUTHCRIZED REPRESENTATIVE © 1988 -2010 ACERB CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD EFFECTIVE ER04411486 From 04/1512013To 0411512014 NAMED INSURED R.G. Flaming, Inc 33868 Zame Avenue Dana Point, CA 92629 RTS AFFECTED Suidrv(u Risk Coverage AOC,honal ?nsured City of Newport Beach 35UJ rorwpoil Blvd Newport So9ch, CA 92li :o Policy Change Number American Zurich Insurance Company US ASSURE lNSURANCE SERVICES OF FLORIDA. INC D,'B/A INILINK INSURANCE SERVICES P.O. BOX 10610 .ACKSONVILLE, FL 32247-0120 Authorized Representative Signature Copyright, Insurance Services Office, Inc, 1983 IL 12 01 11 85 Copyright, ISO Commercial Risk Services. Inc, 1983 Page 1 of 1 COMMERCIAL GENERAL LIABILITY CG 20 33 07 04 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. This endorsement modifies m1urance provided under the folo,,ying: COMNIERCIAt. GENERAL L!A.!31_ITY COVERAGE PART A. Section II - Who Is An Insured is amended to include as ^.n adoitiona! insured any person or or- janization for ,,hoof yeu are performing operatrons kvher you and such person or organization have -greed in writing in a contract or agreement that such Person or organizaton be added as an addi- t oral Insured on your policy Such person o. c.r- oanization <s an additional snsured only with respect to Labdity for "ooddp inuury "property ,ie" or " persona acd rlJeert n,ng rntory" caused, in whole n, i,,, part. bar 1, Your acts or omissions, or 2. T.. ^.e acts or omissions of those ac,:ng on your 1tet.,ai`, in the performance of your or :going oprraticns for the additional insured A persoi s or ryanr?atiat' status as ar addacnal insured under this endorsement ends when ycar zs aerations !or that additionst ihsured are com- otated B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply. This insurance does not apply to I . "Bodily injury ", "property carnage" or "personal and advertising injury" arising out of the ren- dering of, or the failure to render, any proflxs- siorrai architectural, engineering or surveying services. incicding- a. The preparing, approving, or failing to pre- pare cr approve, maps, shop drawings . opirrons, reperts. surveys, f.e!d orders . change orders or drawings and spe lfica. tons, or b. Super, ;scry, nz-,oection. architectural or engireenog aU :, =ties. 2. "Bodily injury" or "property damage" occurring after a. All vrork, inducing materials, parts or equipment furnished in ccnnection witfi such work, on the pro oct (other than service, maintenance or repairs) to be performed by or on behalf of the additional insureds) at the location of the covered o_oerations has been completed; or b, That portion of "y xIr v,c�l oct of w ach t .0 iniurr or damage arises has been put to itc intendeJ use by any person or organization other than another contractor or subcof tractor engaged if, performing opera €ions far principal as a part of the same project. CG 20 33 07 04 ISC Properties, lac, 2004 Page 1 of 1 ENDORSEMENT -his Endorsement Changes the Policy-Please Read it Carefully PRIMARYAND NON - CONTRIBUTING INSURANCE (Third - Party's Sale Negligence) This endorsement modifies insurance provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART PRODUCTS/ COMPLETED OPERATIONS LIABILITY COVERAGE PART RAILROAD LIABILITY COVERAGE PART 3USINESSOWNERS LIABILITY COVERAGE FORM Tho following is added to Section IV - Commercial General Liability Conditions, Paragraph 4 SectionlV: Commercial General Liability Conditions Other lnsurarce d. Notwithstanding the provisions of sub - paragraphs a, b, and c of this paragraph 4, with respect to the Third Party shown below, it ;s understood and agreed that in the event of a claim or "suit" arising out of the Named Insured's sole negligence. this insurance shall be primary and any other insurance maintained by the additional insured named as the Third Party below shall be excess and non - cntributory. The Third Party to whom this endorsement applies Ls: WA Y PERSON OR ORGANIZATION WITH WHOM THE INSURED HAS AGREED BY WRITTEN CONTRACT TO PERFORM SERVICES AND PRIOR TO ANY LOSS THAT ARE WITHIN THE TERMS AND CONCITIONS OF THIS POLICY TO WHICH THIS FORM IS ATTACHED". Absence of a specifically named Third Party above means thatthe provisions of this endorsement apply "as required by s=mitten contractual agreementwith any Third Party for whom you are performing work," All other terms and conditions of this policy remain unchanged. Thlx endorsement is effective on the inception date of the policy unless otherwise stated herein. (The information below is required only when this endorsement is issued subsequent to preparation of he policy.) Policy Number. CP149741 Named insured. R.G. FLEMING INC. Endorsement Effective Date: 081 05/ 2012 Endorsement Serial No, AF 001 397 0712 Includes copyrig hted in aterial of Insurance Services office, Inc. with its perm issio n Copyright, Insurance Services Office, Inc. 1994 POLICY NUMBER CIP149741 COPgMERCiAL GENERAL LIABILITY 7G 24 04 05 09 `hs e,do ement mod flas rsurance provided under the fDhowing COk "4 rzY ERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS! COM PLETED OPERA'T'IONS LABILITY COVERAGE PART SCHEDULE N ame Of Pef,(,n Or Org anization. "ANY PERS01 OR ORGA dCLATION VVIRH'yMOM T-fE `7SURED HAS AGREED TO WANE RIGHTS OR RECOVERY. PROVIDED SUCH AGREEMENT 15 MADE IN WRITING AND PRIOR TO THE LOSS" Tire folonmg is added to Paragfaph `v. Transfer Of Fight, Of Race ,ery Against OiiherS To Us of Section iV - Con�it,a��:: ^:e .rape any tlght of reco, eiy ewe nay nave ;aga,nst the persac or organization sl -, )wn 41 the S°hedule above t�.acse ,' paymer � we snake for injury or damage arising out of your ongoing operations or "your work" done under a contract urth *hat persor or organization and included n1 ti;e "products completed operations hazard °. Thls waver spiphcS on to Eh£ Pc-son of cr anizaron shown in the Schedule above C3 2404 P� 09 insurance Services Office. r1c.. 2008 Page ? of 5 CONTRACTORS STATE LICENSE BOARD STATE OF CALIFORNIA ® 9621 Business Park Drive, Sacramento, California 95827 Governor Edmund G. Broom Jr. WT Mailing Address: P.O. Box 26000, Sacramento, CA 95826 800- 321 -CSLB (2752) yr ,,csib.ca,gov- CheckTheLic meFirst.corn Exemption from Workers' Compensation Before the Contractors State License Board (CSLB) can issue a new license or reinstate, reactivate, or renew an existing license, the applicant or licensee must have on file a Certificate of Workers' Compensation Insurance or a Certificate of Self - insurance issued by the Director of Industrial Relations, or must obtain an exemption by completing and submitting this form. To be exempt from workers' compensation, an applicant or licensee must submit this form to CSLB, certifying under penalty of perjury that he or she does not employ anyone in a manner that is subject to the workers' compensation laws of California. (See Business and Professions Code Section 7125.) DO NOT SUBMIT THIS FORM IF You have an inactive license. The license qualifier is a Responsible Managing Employee (RME). You hold a C -39 Roofing classification — all contractors with a C -39 Roofing classification are required by Section 7125 to have a Certificate of Workers' Compensation Insurance or a Certificate of Self- Insurance on file with the Board. Contractors with a C-38 Roofing classification are not eligible for exemption from workers' compensation, You have employees. For exemption from workers' compensation, complete all of the requested information in Section 1, check only one of the boxes in Section 2, and date and sign the form in Section 3. Please type or print neatly and legibly in black or dark blue ink. gFr`TIl1M 9 — RF!]11112Fr1 RIIgIrvlRgg TUA NIP akin anno;=gg Business Name (as it currently appears on CSLB records) License or Application Fee Number R.G. Fleming Inc. 601073 or OttA 33866 Zarzito Drive Dana Point CA 92629 Business Street Address (number/street only — NO P.O. boxes) City State Zip Code 33866 Zarzito Drive Dana Point CA 92629 Business Phone Number Business Fax Number Business E -mail Address (949 ) 678 -5577 (949 ) 661 -6495 1 richardfleming0099(4msn.com ❑ Check this box if the address shown above is new, CSL8 will update your license IF application business address of record. SECTION 2 — REQUIRED CHECK BOX YOU MUST CHECK ONLY ONE OF THE BOXES BELOW. A I do not employ anyone in the manner subject to the workers' compensation laws of California. OR ❑ I am an cut -of -state contractor, and I do not hire employees who reside in California. (You must provide a certificate of insurance from your workers' compensation insurance carrier in your home state.) o cti,. r Aviv o — rle- 1YVRAILV +a vrnaR s vvtt I certify under penalty of perjury under the laws of the State of California that the information provided on this exemption statement is true and accurate. 1 understand that, upon employing anyone in a manner that is subject to the workers' compensation laws of the State of California, the claim of exemption executed under this form will no longer be valid. I also understand that, as soon. as I employ anyone subject to the California's workers' compensation laws, I must obtain a Certificate of Workers' Compensation Insurance, submit that certificate to CSLB within 90 days of its effective date, and continuously maintain the coverage provided by the certificate in accordance with the law. I further understand that failure to comply with this requirement is grounds for disciplinary action. (The definition of perjury" is telling a tie while under oath.) FALSIFICATION OF ANY CU NT IS GR ND FOR DISCIPLINARY ACTION. Date Si na re,rCcm to ( r, Partn er Officer) Printed Name of Contractor (Owner, Partner, or Officer) 1131/2012 i ` Richard Fleming, President NOTICE ON COLLECTION OR PeRSONAL INxORMATION FOR CSLB USE ONLY CSLB collects the personal information requested on MIS farm as admonts.0 by Business and Professions Code Section 30. Cuts uses this Infomlagnn to itlentlfy and evaluate applicants for ficensuro, issue and renew licenses, and enforce licensing standards set bylaw and eguletion submission of the requested information amapprowy. CSLB canrmt consider this Exemption from Workers Compensation form unmet you phwags all of to, requested Information, Youmayreviewthe mforma provide by Casa Nat however. it m your narrows infor oma Puri Records intimation Fi mails Act. CSLB makesen Pro tice Act, M another rsonai information you qcy a us; 1red by r, to or ed disclosed in asncnss to a court Reaotds Act rin, order, allowed by the intimation Practices Act; N another an -Ppmenagency a5Rgortr by5tach sTaxB lard nr disclose SI2 any Or tandir5ttins) Older,aor tlpe purpose Ore of adm WdRang Tblsessa d cOn[alos anapplicant odeSeStlon forthe Franchise Tax Board n nheietomatio anyctices Act,vfinale Offices totthepurpose t n's wobed,a Business and Professions Code SecUOn i 1a5 5. For more information on he Information Practices Act, visd the Office of Primary Protection's wabsae a[mnex.pnvacy.ca.gov. 1 111111111111111111111111111111111111111111111Jill 13L- 50(rav 4111) CONTRACT FOR THE CONSTRUCTION OF LIFEGUARD TOWERS WITH R. G. FLEMING, INC. THIS CONTRACT FOR THE CONSTRUCTION OF LIFEGUARD TOWERS ( "Contract') is made and entered into as of this I I day of June, 2012 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and Charter City ( "City "), and R. G. FLEMING, INC., a California t ' corporation ( "Contractor ") whose principal place of business is 33866 Zarito Drive, Dana v Point, CA 92629 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to construct two (2) lifeguard towers as more fully described in the Contract Documents ( "Project'). C. 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. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Contract over a period of thirty (30) Calendar days commencing upon issuance of the "Notice to Proceed ". NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Contract shall commence on the Effective Date and shall terminate on August 31, 2012 unless terminated earlier as provided for herein. 2. SCOPE OF WORK 2.1. Contract Documents. The complete Contract for the Project includes all of the following documents: The Specifications /Scope of Services, attached hereto as Exhibit A and incorporated by reference; the Proposal, attached hereto as Exhibit B and incorporated by reference; all Project permits; and all incorporated herein by this reference, and this Contract, and all modifications and amendments thereto (collectively the "Contract Documents "). The Contract Documents comprise the sole agreement between the parties as to the subject matter therein. Any representations or agreements not specifically contained in the Contract Documents are null and void. Any amendments must be made in writing, and signed by both parties in the manner specified in the Contract Documents. 2.2. Scope of Work. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services required for the Project as identified in the Contract Documents ( "Work" or "Services "). 2.3. All of the Work to be performed and materials to be furnished shall be in strict accordance with the provisions of the Contract Documents. Contractor is required to perform all activities, at no extra cost to City, which are reasonably inferable from the Contract Documents as being necessary to produce the intended results. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Work under this Contract and Contractor shall complete the Work within twenty -five (25) Calendar days from the date of issuance of the "Notice to Proceed." Failure to complete the Work in the time allotted may result in termination of the Contract by City. 4. COMPENSATION 4.1. As full compensation for the performance and completion of the Project as required by the Contract Documents, City shall pay to Contractor and Contractor accepts as full payment the sum of Eleven Thousand Nine Hundred Ten Dollars and 00 /100 ($11,910.00). 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. 4.2. This compensation includes: 4.2.1. Any loss or damage arising from the nature of the Work, 4.2.2. Any loss or damage arising from any unforeseen difficulties or obstructions in the performance of the Work, 4.2.3. Any expense incurred as a result of any suspension or discontinuance of the work, but excludes any loss resulting from earthquakes of a magnitude in excess of 3.5 on the Richter Scale and tsunamis, and which loss or expense occurs prior to acceptance of the work by City. 5. PROJECT MANAGER Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the term of the Contract. Contractor has designated Richard Fleming to be its Project Manager. Contractor shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. R. G. FLEMING, INC. Page 2 6. ADMINISTRATION This Contract shall be administered by the Fire and Lifeguard Operations Division of the Fire Department. The Lifeguard Battalion Chief shall be the Project Administrator and shall have the authority to act for City under this Contract. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Contract. 7. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1. Contractor shall use only the standard materials and equipment as described in the Contract Documents in performing Work under this Contract. Any deviation from the materials or equipment described in the Contract Documents shall not be utilized unless approved in advance by the Project Administrator. 7.2. Contractor shall comply with the terms and conditions of the Contract Documents. 7.3. All of the Work 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 Work in a manner commensurate with the highest professional standards. 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. 7.4. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Contract; all applicable federal, state and local laws; and the highest professional standard. 7.5. 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. 7.6. Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 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 Work required hereunder; or for damage to R. G. FLEMING, INC. Page 3 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). 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 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 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. R. G. FLEMING, INC. Page 4 9. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Contract. No civil service status or other right of employment shall accrue to Contractor or its employees. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Work. 10. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. 11. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with the City's Project Administrator in advance of all critical decision points in 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 of the Project, activities performed and planned, and any meetings 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 R. G. FLEMING, INC. Page 5 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 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. 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 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 retumed 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. R. G. FLEMING, INC. Page 6 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. 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. R. G. FLEMING, INC. Page 7 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 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. 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 R. G. FLEMING, INC. Page 8 overtime Work for each craft or type of workman needed to execute the Work contemplated under the Contract shall be paid to all workmen employed on the Work to be done according to the Contract by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of 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. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Contract, the Work to be performed under this Contract shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Contractor. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The subcontractors authorized by the City, if any, to perform the Work on this Project are identified in the Proposal attached hereto as Exhibit B. Contractor shall be fully responsible to City for all acts and omissions of any 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. 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 Work to be performed under this Contract shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1. Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further R. G. FLEMING, INC. Page 9 compensation to Contractor or any other party. Contractor shall, at Contractor's expense, provide such Documents to City upon prior written request. 17.2. Documents, including drawings and specifications, prepared by Contractor pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Contractor will be at City's sole risk and without liability to Contractor. Further, any and all liability arising out of changes made to Contractor's deliverables under this Agreement by City or persons other than Contractor is waived against Contractor and City assumes full responsibility for such changes unless City has given Contractor prior notice and has received from Contractor written consent for such changes. 18. 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. 19. 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. 20. CONFLICTS OF INTEREST 20.1. 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. 20.2. 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. R. G. FLEMING, INC. Page 10 21. NOTICES 21.1. 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: Lifeguard Battalion Chief Lifeguard and Fire Operations City of Newport Beach PO Box 1768 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Phone: (949) 644 -3046 21.2. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Richard Fleming R. G. FLEMING, INC. 33866 Zarito Drive Dana Point, CA 92629 Phone: (949) 678 -5577 22. 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.). 23. TERMINATION 23.1. 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 R. G. FLEMING, INC. Page 11 non - defaulting party may terminate the Contract forthwith by giving to the defaulting party written notice thereof. 23.2. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Contract at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Contract. 24. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Contract and all other Contract Documents by Contractor is a representation that Contractor has visited the Project Site as defined by the Contract Documents, has become familiar with the local conditions under which the Work is to be performed, and has correlated all relevant observations with the requirements of the Contract Documents. 25. STANDARD PROVISIONS 25.1. 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. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 25.2. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 25.3. 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 agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 25.4. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Contract or any other attachments attached hereto, the terms of this Contract shall govern. 25.5. 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. R. G. FLEMING, INC. Page 12 25.6. 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. 25.7. Severability. If any term or portion of this Contract 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. 25.8. 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. 25.9. 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, age or any other impermissible basis under law. 25.10. No Attomey's Fees. In the event of any dispute or legal action arising under this Contractor, the prevailing party shall not be entitled to attorney's fees. 25.11. Counterparts. This Contract may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] R. G. FLEMING, INC. Page 13 IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY' OFFICE Date: �� l�.112 By: Aaron C. 14TF City Attorney ATTEST: 6/// >� Date: B L6EX a� I. own City Clerk CITY OF NEWPORT BEACH, A California m ppal corporation Date: %�� in Scott Poster Fire Chief CONTRACTOR: R. G. FLEMING, INC., a California corporation Date: Richard Fleming President Date: M Cynthia Fleming Secretary [END OF SIGNATURES] Attachments: Exhibit A — Specifications/Scope of Services Exhibit B — Proposal f.• I a pps I ca tl cycom I wpdocs I d0141 p006100008418. doc R. G. FLEMING, INC. Page 14 IN WITNESS WHEREOF, the parties have caused this Contract to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp C City Attorney q q ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: LIM Scott Poster Fire Chief CONTRACTOR: R. G. FLEMING, INC., a California corporation Date: Z Z L By: ichard Fleming President Date: 6---2-2- I Z By: TL---Dw yIrary a Fleming �j See [END OF SIGNATURES] Attachments: Exhibit A — Specifications/Scope of Services Exhibit B — Proposal Exhibit C - Labor and Materials Payment Bond Exhibit D - Faithful Performance Bond c:ldocuments and settingslkparkerVocal settingsltemporary internet files\content.outlook\mynsgj0a\service agreement - lifeguard tower construction 051612.docx R. G. FLEMING, INC. Page 14 EXHIBIT A Specifications /Scope of Services The proposed bid for this Request For Estimate (RFE) shall meet the scope of work as outlined below. SPECIFICATIONS & SCOPE OF WORK 1. Construction of two (2) new lifeguard towers. Towers to be built to the general requirements, standards and plans provided by the City. Materials for construction of the towers shall be provided by the City. Contractor will provide construction labor. Contractor shall be a Class C, General Contractor, or better. Contractor shall also have, or have the ability to obtain, a business license from the City of Newport Beach prior to the start of construction. 3. Construction will take place just to the west of the Newport Pier (between the pier and the Dory fleet). 4. Contractor may use stationary power tools, and must provide own small hand, portable power tools, which shall include: 4.1. Radial arm saw 4.2. Drill press 4.3. Table saw 4.4. Chop saw 4.5. Band saw 5. Contractor shall complete the Work within thirty (30) calendar days from the date of issuance of the "Notice to Proceed." 6. City shall provide a relatively level construction pad on the sand. 7. Contractor may open back door of workshop for easy access to construction site 8. Contractor may park up to two (2) vehicles in Lifeguard Headquarters parking lot during construction only. 9. Lifeguards may move a tower adjacent to the construction site for contractor to use as a rough template, if requested. 10. Contractor shall be responsible for proper cleanup of the work area at the end of each work day. This shall include the removal of trash and debris from the work site. 11. Project Administrator and /or his /her designee shall observe construction progress on a regular basis. Any issues, problems, or corrections shall be noted, and corrected by the Contractor prior to final acceptance of the work. 12. Payment shall not be made until completed work has been accepted by the Project Administrator. City shall have thirty (30) days from receipt of invoice. Plans All specifications and work shall conform to the plans included in this attachment, unless otherwise specified by the Project Administrator. A -21 Page -iKEw iliiimi np�ti QC1. 17 _ un twa_Ve': 11: JUMP PI-N FOAM. 1518,W -U" PLATFORM PLAN VIEW:3 /6'=I's0' All //11 ' Yin � I} � •��� f "1•�`dK tea- �, ,. , u FEAR WALL FTLUIE 519'•n' -o' 5cCT10N 1 GUARDIIOUS.IPLAN 3i4':1' -0' FRONT EEYfaTlOtl WALL FRAME ELEVATION' rmlr , ww r�,,•TEr:'.w. !axD a�. tc se �i• AtVELC KU!l:D a'cD Q< vai¢ED :. ALt FLYVM 7O OF AJ0 F CFAI•r, F ngM Q) 0) ca IL c� a Y . ai ris'I�xan wl Y -iKEw iliiimi np�ti QC1. 17 _ un twa_Ve': 11: JUMP PI-N FOAM. 1518,W -U" PLATFORM PLAN VIEW:3 /6'=I's0' All //11 ' Yin � I} � •��� f "1•�`dK tea- �, ,. , u FEAR WALL FTLUIE 519'•n' -o' 5cCT10N 1 GUARDIIOUS.IPLAN 3i4':1' -0' FRONT EEYfaTlOtl WALL FRAME ELEVATION' rmlr , ww r�,,•TEr:'.w. !axD a�. tc se �i• AtVELC KU!l:D a'cD Q< vai¢ED :. ALt FLYVM 7O OF AJ0 F CFAI•r, F ngM Q) 0) ca IL c� a Y •�,. , J e - • J e -iKEw iliiimi np�ti QC1. 17 _ un twa_Ve': 11: JUMP PI-N FOAM. 1518,W -U" PLATFORM PLAN VIEW:3 /6'=I's0' All //11 ' Yin � I} � •��� f "1•�`dK tea- �, ,. , u FEAR WALL FTLUIE 519'•n' -o' 5cCT10N 1 GUARDIIOUS.IPLAN 3i4':1' -0' FRONT EEYfaTlOtl WALL FRAME ELEVATION' rmlr , ww r�,,•TEr:'.w. !axD a�. tc se �i• AtVELC KU!l:D a'cD Q< vai¢ED :. ALt FLYVM 7O OF AJ0 F CFAI•r, F ngM Q) 0) ca IL c� a 11: JUMP PI-N FOAM. 1518,W -U" PLATFORM PLAN VIEW:3 /6'=I's0' All //11 ' Yin � I} � •��� f "1•�`dK tea- �, ,. , u FEAR WALL FTLUIE 519'•n' -o' 5cCT10N 1 GUARDIIOUS.IPLAN 3i4':1' -0' FRONT EEYfaTlOtl WALL FRAME ELEVATION' rmlr , ww r�,,•TEr:'.w. !axD a�. tc se �i• AtVELC KU!l:D a'cD Q< vai¢ED :. ALt FLYVM 7O OF AJ0 F CFAI•r, F ngM Q) 0) ca IL c� a Exhibit B: Bid Proposal Pricing Proposal Offer: $ 11,910.00 (includes labor, insurances, bonding, travel, tools, etc for the construction of two (2) towers.) CITY OF NEWPORT BEACH BOND NO. 71270175 FAITHFUL PERFORMANCE BOND The premiurii'charges on this Bond is $ 9 910.00 being at the rate of $ Nine Thousand Nine Hundred [en dollars an th `' Mrid Of the Contract price.. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract. . WHEREAS, the City of Newport Beach, State of California, has awarded to R.G. Fleming Inc. hereinafter-designated as the "Principal," a contract for the Construction of Two (2) Lifeguard Towers, located at 70 Newport Pier in the City of Newport Beach, in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference_ NOW, THEREFORE, we, the Principal, and Western Surety Company 'duly authorized to transact business under the laws of the State of 'California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of !dine Thousand Nine Hundred Ten Dollars and 001900 ($9,910.00) lawful money of the United States of America, said sum being equal to 160% 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, exec_ utors, administrators, successors, or assigns, fail to abide by, and well and 'truly keep and perform any or all the Work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and _performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same,' in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in' this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the C- 3 P a 9 e 9/S:d 020S9S89T.8i -:01 :WnNi r19i:9R a�lR�- Lli -A3d event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. 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 2019. Richard Fleming .Name of Contractor. (Principal) Western Surety Company Name of.Surety 101 South Phillips Avenue Sioux Falls, SD 57117 Address of Surety 1- 800 -331 -60.53 Telephone Authorized Agent Signature Aleka Dawn Bridges t Name and Title Attorney -In -Fact NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED C- 41Page 9/9 :d 020S9SB9TGT :0f :WDa3 d9£:90 2002- 0T -BBA State of California Signer(s) Gib.QrThan Named Above`. _ Capacity(ies) CTDW4ed by Signer(s) Signer's Name: \ ❑ Corporate Officer —Title(s):_ ❑ Individual ❑ Partner — ❑Limited ❑General ❑ Attorney in Fact ❑ Trustee O Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual Partner — ❑Limited ❑General ❑ ney in Fact ❑ Trustee ❑ Guardian ❑ Other: _ Signer Is Representing: Top of thumb here 02008 National Notary Association • 9350 De, Soto Ave., P.O. Box 2402 -Chatsworth, CA 91313 - 2402- ..NallonelNota y,org Item #5907 Reorder. Call Toll-Free 1.800-876.6827 who proved to me on the basis of satisfactory evidence to be the person() whose name() is/ale subscribed to the within instrument and acknowledged to me that he /AeAey executed the same in his/hkt4r authorized capacity(iN), and that by his /hkthbw signature('£) on the instrument the person(, or the entity upon behalf of which the person() acted, executed the instrument. PHILL PP R. GUSTAVSON Commission If 1964867 1 certify under PENALTY OF PERJURY under the ® Notary Public - California taws of the State of California that the foregoing orange county paragraph is true and correct. My Comm. Expires Jan 21, 2016 WITNESS m h nd and off i se 1..�,.,� Signature: UVUW �^n Place Notary Seal anNor Stamp Above Sign re al Notary Public p � p O) TIOAI4L Though the information below is not required by taw, it may prove valuable to persons re i on the document and could prevent fraudulent removal and reattach of this form to anothe do ument. Description of Attached Do tent Title or Type of Document: pp � e� 0 1 KkA --Z P ) Document Date: U N64 Number of Pages: 3 L Signer(s) Gib.QrThan Named Above`. _ Capacity(ies) CTDW4ed by Signer(s) Signer's Name: \ ❑ Corporate Officer —Title(s):_ ❑ Individual ❑ Partner — ❑Limited ❑General ❑ Attorney in Fact ❑ Trustee O Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual Partner — ❑Limited ❑General ❑ ney in Fact ❑ Trustee ❑ Guardian ❑ Other: _ Signer Is Representing: Top of thumb here 02008 National Notary Association • 9350 De, Soto Ave., P.O. Box 2402 -Chatsworth, CA 91313 - 2402- ..NallonelNota y,org Item #5907 Reorder. Call Toll-Free 1.800-876.6827 CITY OF NEWPORT BEACH BOND NO. 71270175 LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to R.G. Fleming Inc. hereinafter designated as the "Principal," a contract for the Construction of Two: (2) Lifeguard Towers, located at 70 Newport Pier, 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 Beech, 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 fcr 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 Sureyt 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 Nine Thousand Nine Hundred Ten Dollars and 001100 ($9,990.00) 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 respeot 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 9/£:d 020S9S89161:01 =WOad dSE:90 2002 -0T -833 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. Iri 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.-d ly executed named Principal and Surety, on the 10 day o Ma Richard Fleming L� % Name. of-Contractor.(Prihcipal) A on ed Si aturrefritle SEE A TTA CHED CER TIFICA TE Western Surety Company k A} Name of Surety Authohzed Agent Signature 101 'South Phillips Avenue Sioux Falls, SD_ 57117 Address of Surety. . 1- 800 -331 -6053 Telephone Aleka Dawn Bridges dameandTitle Attorney -In -Fact NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 9 /b :d '020S9S89TGT' :0i :WONd 89£ :90 2002- 01-e3J CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of C)(G_Ac e- On It I Q U 22 .017 before me, 5 ►\e k � Vt , �ACIXS4 'NI VIC, to i Here Insert Name and Title of the Officer personally appeared h is ltctrd C-11 e_ F�evn �ng l,r. Name t of Signer(s) SHERYL FINK A Commission ✓< 1886640 z a a'F' Notary Public - Calttornia z Z• Z • . Orange County My Comm. Expires Apr 22.2014 CIVIL CODE § 1189 who proved to me on the basis of satisfactory evidence to be the person(4 whose name(a) 6)are subscribed to the within instrument and acknowledged to me that ®'she /they executed the same in Oher/their authorized capacity(jeS), and that by (OWher/their signatureJa) on the instrument the person(ej; or the entity upon behalf of which the personaay 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: Place Notary Seal Above Signatibe of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment or this form to another document. Description of Attached Document , I I Title or Type of Document: Labr Q YLC� YY o0 Y� W5 Tcutwie_a 'Bond Document Date: { O-H to, ZO 1 L Number of Pages: � I Ac. 006Y Signer(s) Other Than Named Above: I\ZM Capacity(ies) Claimed � by Signer(s) Signer's Name:RS-I'IU 6 Gelle. ReMl6qj1'• ner's Name: ❑ Corporate Officer — Title(s): ❑ Co orate Officer — Title(s): ❑ Individual ❑ Individu ❑ Partner — ❑ Limited ❑ General Top or thumb here ❑ Partner — ited ❑ General Top or thumb here ❑ Attorney in Fact ❑ Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator I Guardian or Conservator 69 Other: -� f, ���� ❑Other: Signer Is Representing: "it ;if �� {j' Y. Signer Is Representing: CNA 5/10/2012 4:18:04 PM PAGE 1/002 Fax Server ❑ Acknowledgment of Principal © Acknowledguent of Surety (Attorney -in -Fact) STATE OF CALIFORNIA 1 as COUNTY OF Sacramento i�a�( /(� �Ojot ?hq O Rth Avail - date before me, date here insert name and title of the,6111cor personally appeared Aleka Dawn Bridges name(t) nfsignar{a) who proved to me on the basis of satisfactory evidence to be the persorMlwhose namem! Pre subscribed to the within instrument and acknowledged to me that heoahey executed the same in hiee their authorized capacitviip< and that by hi�heir signature(sron 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 is true and correct. 5. JOHNSON paragraph - Commission # 1886481 a » ® Notary Public - CaMornia z WITNESS n#md fficial seal. z Sacramento County My Comm Expires May 12, 2014 Signature (Seal) (The balance of this page is intentionally left blank.) Western Surety Company Form 1900.1 -2006 47 CNA 5/10/2012 4:18:04 PM PAGE 2/002 Fax Server '� ( ' � ! it•1 � j i �' � i " i�� � �o '' p� � � T r�'r 1I: r ' POWER OF ATTORNEY- CERTIFIED COPY Bond No. 71270'-75 Snow 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 end appoint Aleka Dawn Bridges its true and lawful attorneys) -in -fact, with full power and authority hereby conferred, to execute, acknowledge and deliver for and on its behalf as Surety, bonds for: Principal: R. G. Flening, Ins. Obligee: City of Newport Beach Amt $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 Comparty 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 fallowing bylaw of Western Surety Company which remains in full force and effect. "Section ?. 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 Vivre President or by such other officers as the Board ofDirecters 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 norporation. The signatiire. nfany s inh offiner and tha nnrpnrate se.al may he printed by farsimile." All authority hereby conferred shall expire and terminate, without notice, unless used before midnight of September 10 2012 , but until such time shall be irrevocable and in full fore and effect. In Witness Wbersof Western Surely Company has mused these presents to be signed by its Senior Vice President, Paul T. Bruflat, and its corRpkpjR-.5eal to be axed this 10th day of May 2012 WEST R SURE COMPANY r Paul T. Brufla Senior Vice President STk aQIJ'!' aw A as COUN%;p I T.M[fluiisxalLa On this 10th day of May ,iu the year 2012 ,before me, a=Lary public, personally appeared Paul T. Bruflat, who being to one duly swore, 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 co D. KRELL AO r��� NOTARYPUBLIP(rW�� i45jrbNOUTH OAKOTAti .li otary Public -South Dakota My Commission Expires November 30, 2012 I the undersigned offlccr of Western Surety Company, a stock corporation of the State of South Dakota, do hereby certify, that the attached Power of Attorney i in full Lome and effect and is irrevocable, and furthermore, that Section 7 of the bylaws of the Company ae sat forth in the. Power of Attorney is now in £crop.. In testimony whereof, I have hereunto set my hand and seal of Western Surety Company this 10th - day of MaV 2012 , WEST R// SURE.0 COMPANY Paul T. BruflattlSenior Vice President Form F530692006