HomeMy WebLinkAboutC-6204 - Contract for the Improvement of Public Work Recreation Facility Re-Tile Project0
U AMENDMENT NO. ONE TO
CONTRACT FOR THE IMPROVEMENT OF PUBLIC WORK
RECREATION FACILITY RE -TILE PROJECT WITH MICHAEL FREEMAN, DBA
FREEMAN'S CUSTOM MARBLE
THIS AMENDMENT NO. ONE ("Amendment No. One") TO CONTRACT FOR
THE IMPROVEMENT OF PUBLIC WORK ("Contract") is made and entered into as of
this 11th day of February, 2016 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
MICHAEL FREEMAN, a Sole Proprietor doing business as ("DBA") FREEMAN'S
CUSTOM MARBLE ("Contractor"), whose address is 5102 Dunbar Avenue, Unit A,
Huntington Beach, CA 92649, and is made with reference to the following:
RECITALS
A. On August 31, 2015, City and Contractor entered into a Contract for the
Improvement of Public Work ("Contract") to remove and replace existing flooring
with tile at the following locations: entry/office area of the Bonita Creek Park
building; hallway of the Newport Theatre Arts Center; Kitchen/closet of the Carrol
Beek Community Center, as more fully described in the Contract Documents
("Project").
B. The parties desire to enter into this Amendment No. One to reflect additional
Services not included in the Agreement, as amended, to include the prevailing
wage requirement and to increase the total compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Contract is amended in its entirety and replaced with the
following: "The term of this Contract shall commence on the Effective date and shall
terminate on March 31, 2016, unless terminated earlier as provided for herein."
2. SCOPE OF WORK
Exhibit A to the Contract shall be supplemented to include the Scope of Work
and Fee Schedule, attached hereto as Exhibit A and incorporated herein by reference.
Exhibit A to the Contract and Exhibit A to Amendment No. One shall collectively be
known as "Exhibit B."
3. COMPENSATION
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "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 Thirty One Thousand Five Hundred Fifty Eight
Dollars and 121100 ($31,558.12), less any money deducted pursuant to Section 3.2.
Contractor shall not receive any additional compensation unless approved in writing in
advance by City's Project Administrator as defined herein. City shall make full payment
to Contractor no later than thirty (30) calendar days after acceptance of the Work by
City
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No.
Improvement, including all reimbursable items and subconsultant fees, in an amount not
to exceed Fifteen Thousand Seventy Three Dollars and 671100 ($15,073.67).
4. PREVAILING WAGES
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. All parties to the
contract shall be governed by all provisions of the California Labor Code — including, but
not limited to, the requirement to pay prevailing wage rates (Sections 1770-7981
inclusive). A copy of the prevailing wage rates shall be posted by the Contractor at the
job site.
5. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Freeman's Custom Marble Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No.
Improvement to be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNE 'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST: �1'
Date: �/
CITY OF NEWPORT BEACH,
a California �m,�unic'al c rporat
L
Date: _
By:
I%
t Darr A. Webb
Public Works Director
iBy:
6w—�—
Leilani I. Brown
City Clerk Oc POa,
CONSULTANT: MICHAEL FREEMAN,
DBA Freeman's Custom Marble
Date:
Signed in Counterpart
Michael Freeman
Owner
ND OF SIGNATURES]
Attachments: Exhibit A — Scope of Work and Fee Schedule
Freeman's Custom Marble Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No.
Improvement to be executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: % Date:
By:`
By:
Aaron C. Harp � David A. Webb
City Attorney Public Works Director
ATTEST: CONSULTANT: MICHAEL FREEMAN,
Date: DBA Freem 's ustom Marble
Date: G
By: By:
Leilani I. Brown Michael Freeman
City Clerk Owner
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Work and Fee Schedule
Freeman's Custom Marble Page 3
EXHIBIT A
SCOPE OF WORK AND FEE SCHEDULE
Freeman's Custom Marble Page A-1
EXHIBIT A
SCOPE OF WORK
RECREATION FACILITY RE -TILE PROJECT
Additional Locations—Recreation Facilities
LOCATION
DESCRIPTION
AMOUNT
Bonita Creek Park — 3010 La Vida
Kitchen Floor: Tile Removal and
Installation
$3,480.00
Newport Theatre Arts Center —
2501 Cliff Drive
Bathroom Floor: Tile Installation
$675.00
Cliff Drive Park Community
Center -301 Riverside Ave
Installation of the floor
throughout
$8,349.00
Materials for the above locations
$2,569.67
TOTAL:
$15,073.67
CONTRACT FOR THE IMPROVEMENT OF PUBLIC WORK
RECREATION FACILITY RE -TILE PROJECT WITH MICHAEL FREEMAN, DBA
4 FREEMAN'S CUSTOM MARBLE
THIS CONTRACT FOR THE IMPROVEMENT OF PUBLIC WORK ("Contract") is
made and entered into as of this 31st day of August, 2015 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("City"), and Michael Freeman, DBA Freeman's Custom Marble, a sole proprietor
doing business as ("DBA") ("Contractor"), whose principal place of business is 5102
Dunbar Drive, Unit A, Huntington Beach, California 92649, 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 remove and replace existing flooring
with tile at the following locations: entry/office area of the Bonita Creek
Park building; hallway of the Newport Theater Arts Center; Kitchen/closet
of the Carrol Beek Community Center, 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 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 90 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 1213112015, 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: Scope of Work and Fee Schedule, attached hereto as Exhibit
A; Insurance Requirements, attached hereto as Exhibit B; all Project Permits; the
Standard Special Provisions and Standard Drawings; Plans and Special Provisions for
Contract No. 6204; Standard Specifications for Public Works Construction (current
adopted edition and all supplements); and this Contract, and all modifications and
amendments thereto (collectively the "Contract Documents"). Exhibits A & B, and all
other named Contract Documents, are incorporated herein by reference. 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
3.1. Time is of the essence in the performance of Work under this Contract
and Contractor shall complete the Work within 90 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 and assessment of damages as
outlined in Section 3.2.
3.2. The parties agree that it is extremely difficult and impractical to determine
and fix the actual damages that City will sustain should Contractor fail to complete the
Project within the time allowed. Should Contractor fail to complete the Work called for
in this Contract within 90 calendar days from the date of issuance of the Notice to
Proceed, Contractor agrees to the deduction of liquidated damages in the sum of Five
Hundred Dollars ($500.00) for each calendar day beyond the date scheduled for
completion.
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 Nineteen Thousand Seven Hundred Eighty One
Dollars ($19,781.45), less any money deducted pursuant to Section 3.2. Contractor
shall not receive any additional compensation unless approved in writing in advance by
City's Project Administrator as defined herein. City shall make full payment to
Contractor no later than thirty (30) calendar days after acceptance of the Work by City.
4.2. This compensation includes:
4.2.1. Any loss or damage arising from the nature of the Work;
Michael Freeman, DBA Freeman's Custom Marble Page 2
4.2.2. Any loss or damage arising from any unforeseen difficulties or
obstructions in the performance of the Work; and
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 tidal waves, including 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 Michael Freeman to be its Project
Manager. Contractor shall not remove or reassign the Project Manager without the prior
written consent of City. City's approval shall not be unreasonably withheld.
6. ADMINISTRATION
This Contract shall be administered by the Public Works Department City's Public
Works Director, or designee, shall be the Project Administrator and shall have the authority
to act for City under this Contract. The Project Administrator or designee 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.
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 Contract.
Michael Freeman, DBA Freeman's Custom Marble Page 3
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. CHANGE ORDERS
8.1. This Contract may be amended or modified only by mutual written
agreement of the parties.
8.2. The Contractor shall only commence work covered by a change order
after the change order is executed and notification to proceed has been provided by the
City.
8.3. There shall be no change in the Contractor's members of the project team,
as listed in the approved proposal, which is a part of this contract without prior written
approval by the City.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1. City and its elected or appointed officers, agents, officials, employees and
volunteers 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.
9.2. Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the
Work of any subcontractor or supplier selected by Contractor.
9.3. To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its elected or appointed officers, agents, officials, employees
and volunteers (collectively, the "Indemnified Parties"), from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this 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, reckless, 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 for any or all of them.
Michael Freeman, DBA Freeman's Custom Marble Page 4
9.4. Notwithstanding the foregoing, nothing herein shall be construed to
require Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this 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 Contractor.
9.5. Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original
condition and former usefulness as soon as possible, and to protect public and private
property. Contractor shall be liable for any private or public property damaged during
the performance of the Project Work.
9.6. 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.
9.7. Nothing in this Section or any other portion of the Contract Documents
shall be construed as authorizing any award of attorneys' fees in any action to enforce
the terms of this Contract, except to the extent provided for above.
9.8. The rights and obligations set forth in this Section shall survive the
termination of this Contract.
10. INDEPENDENT CONTRACTOR
City has retained Contractor as an independent contractor and neither Contractor
nor its employees are to be considered employees of City. The manner and means of
conducting the Work are under the control of Contractor, except to the extent they are
limited by statute, rule or regulation and the 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 Contract. Anything
in this Contract 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.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work to
be performed. City agrees to cooperate with Contractor on the Project.
Michael Freeman, DBA Freeman's Custom Marble Page 5
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator and/or 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.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement of
Work, Contractor shall obtain, provide and maintain at its own expense during the term of
this Contract or for other periods as specified in this Contract, policies of insurance of the
type, amounts, terms and conditions described in the Insurance Requirements attached
hereto as Exhibit C and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this 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 co -tenant if Contractor is a partnership or joint -venture or
syndicate or co -tenancy, which shall result in changing the control of Contractor. Control
means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or
more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform the Work on this Project
are identified in the Proposal attached 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. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the 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
Michael Freeman, DBA Freeman's Custom Marble Page 6
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Contract, 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 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 Contract, 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 Contract
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 Contract 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 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. 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.
Michael Freeman, DBA Freeman's Custom Marble Page 7
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-class mail, addressed as
hereinafter provided.
21.2. All notices, demands, requests or approvals from Contractor to City shall
be addressed to City at:
Attn: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
21.3. All notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at:
Attn: Michael Freeman
Michael Freeman, DBA Freeman's Custom Marble
5102 Dunbar Drive, Unit A
Huntington Beach, CA 92649
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. Contractor
and City expressly agree that in addition to all claims filing requirements set forth in the
Contract and Contract Documents, Contractor shall be required to file any claim
Contractor may have against City in strict conformance with the Government 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
Michael Freeman, DBA Freeman's Custom Marble Page 8
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. Recitals. City and Contractor acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Contract.
25.2. Compliance with all Laws. Contractor shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
25.3. Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
25.4. 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.
25.5. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Contract and any other attachments attached hereto, the
terms of this Contract shall govern.
Michael Freeman, DBA Freeman's Custom Marble Page 9
25.6. 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.
25.7. 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.
25.8. 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 Contract shall continue in full force and effect.
25.9. Controlling Law and Venue. The laws of the State of California shall
govern this Contract and all matters relating to it and any action brought relating to this
Contract shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
25.10. Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
25.11. 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 attorneys' fees.
25.12. 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]
Michael Freeman, DBA Freeman's Custom Marble Page 10
IN WITNESS WHEREOF, the parties have caused this Contract to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY AT�,Rl(; OFFICE
Date: )) II
By:
I�
Aaron d. Harp
City Attorney
ATTEST:
Date: vl• "T•!J�
By:
Leilani I. Brown
City Clerk _,Noo n%,.
�AL.l F0
CITY OF NEWPORT BEACH,
a California muni ipal corporation
Date:
By: f
David A. Webb
Public Works Director
CONTRACTOR: Michael Freeman, DBA
Freeman's Custom Marble a sole
proprietor doinp bu iness as ("DBA")
Date: 9 / 3 1 <
By: J
Michael Freeman
Owner
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Work and Fee Schedule
Exhibit B — Insurance Requirements
Michael Freeman, DBA Freeman's Custom Marble Page 11
EXHIBIT A
SCOPE OF WORK AND FEE SCHEDULE
Recreation Facility Re -tile Project, multiple locations:
Bonita Creek Park
3010 La Vida
Entry/Office —18" or 20" Montagna Tile Set Over Vinyl Floor.
650 sq ft approximate @ $10.70/sq. ft.
Total: $6,955.00
2. Newport Theatre Arts Center
2501 Cliff Drive
Hallway, 18" or 20" Montagna Tile Set Over Vinyl Floor.
492 sq. ft approximate @ $10.50/sq. ft.
Total: $5,166.00
3. Carrot Beek Community Center
115 Agate Ave
Kitchen/Closet 18" or 20" Montagna Set Over Vinyl Floor.
137 sq. ft approximate @ $10.70/sq. ft.
Total: $1,465.90
Project Materials (for all 3 sites) - 1,409 sq. ft @ $2.05/sq. ft.
SUB -TOTAL: $16,475.35
CONTINGENCY: $ 3,306.00 (approx. 20%)
TOTAL: $19,781.45
Notes:
• Vinyl used as moisture guard
• Fortified thinset with mortar mix (add mix) used.
• All floors straight lay with 3/16" grout joint.
• Removal and haul away of trash, delivery, supplied.
• Tile availability subject to ordering time.
Michael Freeman, DBA Freeman's Custom Marble Page A-1
EXHIBIT B
INSURANCE REQUIREMENTS — PUBLIC WORKS AND CONSTRUCTION
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at its
own expense during the term of this Contract, policies of insurance of the type and
amounts described below and in a form satisfactory to City. Contractor agrees to
provide insurance in accordance with requirements set forth here. If Contractor
uses existing coverage to comply and that coverage does not meet these
requirements, Contractor agrees to amend, supplement or endorse the existing
coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business
of insurance in the State of California, with an assigned policyholders' Rating of A -
(or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by City's Risk
Manager.
3. Coverage Reauirements.
A. Workers' Compensation Insurance. 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
employee for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation Insurance and
Employer's Liability Insurance in accordance with California law 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
certificate of insurance, a Waiver of Subrogation endorsement in favor of
City, its elected or appointed officers, agents, officials, employees and
volunteers.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate and two
million dollars ($2,000,000) completed operations aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
Michael Freeman, DBA Freeman's Custom Marble Page B-1
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Contract, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit for each accident.
D. RESERVED
E. RESERVED
F. RESERVED
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Contract shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials employees and
volunteers or shall specifically allow Contractor or others providing insurance
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. Contractor hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance
clauses from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its elected or appointed officers, agents, officials employees and
volunteers shall be included as additional insureds under such policies.
C. Primary and Non Contributory. Contractor's insurance coverage shall be
primary insurance and/or the primary source of recovery with respect to City,
its elected or appointed officers, agents, officials, employees and volunteers.
Any insurance or self-insurance maintained by City shall be excess of
Contractor's insurance and shall not contribute with it.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days notice of cancellation or nonrenewal of coverage (except for
nonpayment for which ten (10) calendar days notice is required) for each
required coverage except Builders Risk Insurance, which shall contain an
endorsement with said required notices.
Michael Freeman, DBA Freeman's Custom Marble Page B-2
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. All of the executed
documents referenced in this Contract must be returned to City within ten
(10) regular City business days after the date on the "Notification of Award".
Insurance certificates and endorsements must be approved by City's Risk
Manager prior to commencement of performance. Current certification of
insurance shall be kept on file with City at all times during the term of this
Contract. City reserves the right to require complete, certified copies of all
required insurance policies, at anytime.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Contract to change the amounts and types of
insurance required by giving Contractor ninety (90) calendar days advance
written notice of such change. If such change results in substantial additional
cost to Contractor, City and Contractor may renegotiate Contractor's
compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure of
City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on all
insurance required from subcontractors. For CGL coverage, subcontractors
shall provide coverage with a format at least as broad as CG 20 38 04 13.
D. Enforcement of Contract Provisions. Contractor acknowledges and agrees
that any actual or alleged failure on the part of City to inform Contractor of
non-compliance with any requirement imposes no additional obligations on
City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Exhibit C are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally
provided by any insurance. Specific reference to a given coverage feature is
for purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
Michael Freeman, DBA Freeman's Custom Marble Page B-3
available proceeds in excess of specified minimum limits of insurance and
coverage shall be available to the City.
F. 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 parry 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 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.
G. City Remedies for Non Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Contract, or to suspend Contractor's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option,
be deducted from amounts payable to Contractor or reimbursed by
Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
Coverage not Limited. All insurance coverage and limits provided by
Contractor and available or applicable to this Contract are intended to apply
to the full extent of the policies. Nothing contained in this Contract or any
other agreement relating to City or its operations limits the application of
such insurance coverage.
J. Coverage Renewal. Contractor will renew the coverage required here
annually as long as Contractor continues to provide any Work under this or
any other Contract or agreement with City. Contractor shall provide proof
that policies of insurance required herein expiring during the term of this
Contract have been renewed or replaced with other policies providing at
least the same coverage. Proof that such coverage has been ordered shall
be submitted prior to expiration. A coverage binder or letter from
Contractor's insur4ance 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 with five (5) calendar days of the expiration of the coverages.
Michael Freeman, DBA Freeman's Custom Marble Page B-4
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach.'`
Date Received: 8/18/15
Date Completed: 9/22/15
Dept./Contact Received From: Raymund
Sent to: Raymund By:
Company/Person required to have certificate:
Type of contract:
Chris/Alicia
Freemans Custom Marble
Public Works
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 8/3/15-8/3/16
A. INSURANCE COMPANY: U.S. Specialty Insurance Company
B. AM BEST RATING (A-: VII or greater): A+; XV
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California? ® Yes ❑ No
D. LIMITS (Must be $1 M or greater): What is limit provided?
1,000,000/2,000,000
E. ADDITIONAL INSURED ENDORSEMENT— please attach
N Yes ❑ No
F. PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
N Yes ❑ No
G. ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
N Yes ❑ No
H. ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
N Yes ❑ No
1. PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
N Yes ❑ No
J. CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes N No
K. ELECTED SCMAF COVERAGE (RECREATION ONLY):
N N/A ❑ Yes ❑ No
L. NOTICE OF CANCELLATION:
❑ N/A N Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 7/17/15-1/1
A. INSURANCE COMPANY: Mercury Insurance Company
B. AM BEST RATING (A-: VII or greater) A+; VIII
C. ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California? N Yes ❑ No
D. LIMITS - If Employees (Must be $11M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided? 25/50/25
E. LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?) N/A
F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only): N N/A ❑ Yes ❑ No
G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes N No
H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 8/6/15-8/6/16
A. INSURANCE COMPANY: Markel Insurance Company
B. AM BEST RATING (A-: VII or greater): A:XIV
C. ADMITTED Company (Must be California Admitted):
D. WORKERS' COMPENSATION LIMIT: Statutory
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
F. WAIVER OF SUBROGATION (To include): Is it included?
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
NOTICE OF CANCELLATION:
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
W. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
9/22/15
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
® Yes ❑ No
® Yes ❑ No
1,000,000
® Yes ❑ No
® N/A ❑ Yes ❑ No
❑ N/A ® Yes ❑ No
® N/A ❑ Yes ❑ No
® NIA ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _,,
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval needed due to Auto Liability limit being under $1,000,000. AoDroved by Sheri 9/2/15
Approved:
Risk Management
* Subject to the terms of the contract.