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HomeMy WebLinkAboutC-4069 - Contractor Agreement for Storm Drain and V Ditch ServicesAMENDMENT NO. TWO TO CONTRACTOR AGREEMENT WITH UNITED STORM WATER FOR STORM DRAIN AND V DITCH SERVICES THIS CONTRACTOR AGREEMENT ("Amendment No. Two") is made and entered into as of this 1st day of October, 2013 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and UNITED STORM WATER, a California corporation ("Contractor"), whose address is 14000 E. Valley Blvd, City of Industry, CA 91746, and is made with reference to the following: RECITALS A. On September 9, 2008, City and Contractor entered into a Contractor Agreement ("Agreement") for the cleaning of 28 storm drain structures, 3,208 catch basins and 16,479 linear feet of V ditches ("Project"). B. On July 19, 2012, City and Contractor entered into Amendment No. One to the Agreement to reflect additional Services not included in the Agreement and to increase the total compensation. C. City desires to enter into this Amendment No. Two to continue the previously added additional contract Services through the term of the Agreement and to increase the total compensation. D. City and Contractor mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. CONTRACTOR DUTIES The City and Contractor expressly agree that the Contractor shall continue to perform the Services set forth in Exhibit A to the Agreement as well as the Services set forth in Exhibit A to Amendment No. One through the term of the Agreement. The Services set forth in Exhibit A to the Agreement and Exhibit A to Amendment No. One shall collectively be called "Contract Services'. The City may elect to delete certain services within the Contract Services at its sole discretion.' The total compensation to Contractor for Contract Services shall be amended to reflect a total not to exceed One Hundred Sixty -Nine Thousand Dollars and 001100 ($169,000.00) for the term October 1, 2013 through September 30, 2014 ("Total Amended Yearly Compensation"). No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. The Total Amended Yearly Compensation reflects the annual CPI adjustment and Contractor's additional compensation in an amount not to exceed Six Thousand United Storm Water Page 1 Dollars and 00/100 ($6,000.00) for the term October 1, 2013 through September 30, 2014. 3. 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. IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 11- 12 -13 CITY OF NEWPORT BEACH, a California municipal corporation Date: l't-) By: Uk4LAAj& 61 VI w; - r- By: 1 Aaron Cf Harp Dave -M City Attorney d City Manager ATTEST: Date: By: Leilani I. Brown City Clerk PC) ®4 FC., CONTRACTOR: United Storm Water, a California corporation Date: By: 6 °/�/1 Eduardo Perry Jr. President Date: I I / 7-1 I /_3 By: b Robert Pina Secretary/Treasurer [END OF SIGNATURES] United Storm Water Page 2 V� AMENDMENT NO. ONE TO CONTRACTOR AGREEMENT WITH UNITED STORM WATER O FOR STORM DRAIN & V -DITCH CLEANING J THIS AMENDMENT NO. ONE �qT'O�� CONTRp�Ck� OR AGREEMENT ("Amendment �J No. One"), is entered into as of this 1�7N day of MT*J2012, by and between the CITY OF NEWPORT BEACH, a California Municipal corporation ("City"), and UNITED STORM WATER, a California corporation whose address is 14000 E. Valley Blvd, City of Industry California, 91746 ("Contractor'), and is made with reference to the following: RECITALS: A. On September 9, 2008, City and Contractor entered into a Contractor Agreement for cleaning of storm drain structures, catch basins and v -ditches ("Agreement"). B. Contractor provides cleaning to 28 storm drain structures, 3,208 catch basins and 16,479 linear feet v -ditches ("Project"). C. New collection units were installed which required extra services to be provided in Fiscal Year 2011-12. D. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement which are to be performed by Contractor. E. City and Contractor mutually desire to amend the Agreement as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Additional Contract Services") as described in Exhibit A, which is incorporated herein by this reference, and the Agreement. The Additional Contract Services shall be performed at least as frequently as specified in Exhibit A. City shall have the right to alter frequency of maintenance as necessary to ensure highest industry standards of maintenance. The City and Contractor expressly agree that the Contractor shall only be required to perform the Additional Contract Services until June 30, 2012 unless there is a further amendment of the Agreement. 2. COMPENSATION TO CONTRACTOR The total additional compensation to Contractor for performing the Additional Contract Services through June 30, 2012, which are to be performed pursuant to this Amendment No. One, shall not exceed Fifteen Thousand Dollars and No Cents ($15,000.00). 3. 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. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. One on the date first above written. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 4� 2 S /2- By:"oc(' Aaron C. Harp ,rte City Attorney ATTEST: Date: jq`1Z By: —", fin Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: -111T 1-Z By: Dave City Manager CONTRACTOR: United Storm Water, a California corp orion 61Date: 1 y 1/12. By: S.-(4 e-' / l je7o u�qAtj o PARR y rt-La,5 i o Date: � zzr / Z Robert Pina Secretary/Treasurer [END OF SIGNATURES] Attachments: Exhibit A – Scope of Work for additional Contract Services United Storm Water Page 2 EXHIBIT A Scope of Work 1) Remove additional bushes and growth on the outside of the v -ditch along Coast Highway & Superior. 2) Remove storm drain structure blockage on the back side of Milford Drive in Cameo Shores, including broken tree branches and other debris. 3) Onetime cost to unclog storm drainpipe under Back Bay Road. 4) During the past five years, Operations Support inherited CDS (Continuous Deflection Separation) units and additional structures from Public Works projects that were not part of the original cleaning contract. a) These units were serviced cleaned out several clogged storm drain pipes that had root balls growing inside of them, causing water flow issues. United Storm Water Page 3 CITY OF NEWPORT BEACH Storm Drain & V -ditch Cleaning CONTRACTOR MOM THIS AGREEMENT, entered into this 9 day of September of 2008, by and between the City of Newport Beac Municipal Corporation and Charter City ("City"), and, United Storm Water a Corporation located at 14000 E. Valley Blvd, City of Industry, CA 91746 ("Contractor"), is made with reference to the following Recitals: RECITALS WHEREAS, the City desires to obtain contract services for the cleaning of 28 storm drain structures, 3,208 catch basins and 16,479 linear feet of v -ditches. WHEREAS, on July 30, 2008 a Request for Proposals (RFP) requesting proposals for the cleaning of storm drain structures, catch basins and v -ditches was mailed to firms. WHEREAS, ("Contractor") submitted the lowest bid among the firms which responded to the RFP. WHEREAS, the Contractor desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, the Parties agree as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the Term of this Agreement shall be for a period of four (4) years. The term shall commence on October 1, 2008, after City Council approval of this Agreement, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Contract Services") as described in the RFP and the Contractor's proposal. The RFP and Contractor's Proposal are attached hereto as Exhibit A and incorporated by this reference. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of maintenance as necessary to ensure highest industry standards of maintenance. 3. WORKMANSHIP. SUPERVISION, AND EQUIPMENT A. All work shall be performed in accordance to the highest industry standards of maintenance such that storm drains, catch basins and v - ditches are clear of debris and plant material. B. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. C. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. D. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. F. All work shall be performed in accordance with the highest maintenance standards. G. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor and clearly post "Serving the City of Newport Beach." H. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor the sum of $152,334.70 a year for all work and services to be performed under this Agreement on an annual basis as provided herein and in Exhibit A ("Contract Amount'). City shall pay Contractor the unit prices set forth in Exhibit B, which is attached hereto and incorporated herein by this reference, for all work and services to be performed under this Agreement that are in addition to the annual services and which are approved by the City in writing prior to the performance of the work. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. A. Contractor shall submit monthly invoices to City describing the work performed the preceding month. Contractor's bills shall include the total number of catch basins, linear feet of V -ditches cleaned, and the total number of storm drain structures, the location of all catch basins, V - ditches, and storm drains cleaned, the percentage of the total annual work completed, the date the services were performed, the location and number of hours spent on all work billed on an unit or hourly basis. For work to be performed on an annual basis, the City shall pay Contractor based on the percentage of the total work completed. For unit priced work approved by the City in writing that is in addition to the annual work, the City shall pay Contractor based on the Unit Prices contained in Exhibit B. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. B. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit B. C. Upon the second anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount to be paid by the City as set forth above and in Exhibit A and the unit prices set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original amounts by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the 1 1. adjustment is to occur effective June 1, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables including in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. 5. 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 Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or 4 Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. & 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 Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. 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 two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insureds as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F.Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. 0 G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 10. RECORDSIREPORTS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the City Administrator within 10 days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional services as requested by the Administrator. Additional services, may be billed in accordance with the unit cost proposed by the Contractor Exhibit B. B. Contractor shall perform additional/emergency services as requested by the Administrator. Contractor must obtain written authorization from the City Administrator prior to the performance of any additional/emergency services. Additional services, may be billed in accordance with the per unit cost proposed by the Contractor in Exhibit B. C. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period of less than a full four (4) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute .arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be C decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15.LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, Contractor, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17.CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. 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 termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658-8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: UNITED STORM WATER INC. 14000 E. VALLEY BLVD CITY OF INDUSTRY, CA 91746 20. TERMINATION(DEFAU LT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that 10 portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate cleaning standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 21.COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 22. WAIVER A waiver by City 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. 23. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 24. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 25. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 11 26. 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. 27. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Faithful Performance Bond in the amount of one hundred percent (100%) of the total amount to be paid Contractor as set forth in this Agreement in the form attached hereto as Exhibits C which is incorporated herein by this reference. The Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: Property -Casualty. The Contractor shall deliver, concurrently with execution of this Agreement, the Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPR VED AS TO FORM: 7 C -U-- cr, ff cl- � Aaron C. Harp, Asst. City Attorney for the City of Newport Beach ATTEST: La onne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipa(Corpora io By: EffTand Selich, ayor for the City of Newport Beach CON NT: By: (Corporate Offic Title: Vice -President Print Name: Daniel Perry Sr. (Financial Officer) Title: Secretary/Treasurer Print Name: Robert Pina 13 Exhibit A CITY OF NEWPORT BEACH Stem Drsb R V -d" CbwdnS Amchment C. Proposal Form MUMMIM Catch Bas m (3"S distinct cater basins) V4tdm (16,479 linear Eoat) storm Main strncnaes (28) ramtAamu rcdr Signatnra — 14 Aanaat COO S 12p+3Dg.00 S� 21,%AZ2'71) S tilt Ljz'. as z t52,3 70 a 1/7 �+�$ Datm CITY OF NEWPORT BEACH Request for Proposal STORM DRAIN & V DITCH CLEANING July 2008 I. II. CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Currently the City has a contract with Justin's Jetting to clean 3,208 catch basins, 16,479 feet of v -ditches, and 28 storm drain structures on a yearly basis. This greatly reduces the amount of dirt, debris, and litter that would have eventually impacted water quality in the harbor and bay. In addition, this permits the storm drain system to divert water from rain and run-off out of the streets in order to prevent flooding. RFP OBJECTIVES The objectives of this RFP are to obtain suitable proposals from qualified Contractors, review all proposals in a comprehensive manner, and select a qualified company for a catch basin, v -ditch, and storm drain structure cleaning contract. SELECTION PROCESS The City of Newport Beach is interested in receiving proposals for storm drain, catch basin and v -ditch cleaning services from selected, qualified companies. After a careful review of each submitted proposal, the City will conduct an evaluation leading to the selection of a contractor and the award of a contract. The resultant contract is intended as a four (4) year contract, with the possibility of up to two (2) one (1) year extensions, renewable on an annual basis at the City's sole discretion based on the contractor's performance. The contract will be re -bid no less than every six (6) years. Additional catch basins, v -ditches, and storm drain structures as developed or assumed by the City for cleaning, may be added to the contract (sample contract included). Copies of this request for proposal may be obtained in person at the Administration office of the General Services Department located at 592 Superior Avenue, Newport Beach. Please do not mail any correspondence to the Superior Avenue address as it is not a valid mailing address. IV. SCHEDULE OF EVENTS Mailing Date Mandatory Pre -Proposal Meeting Proposal Due Award of Contract Contractor In Place Wednesday, July 30, 2008 Wednesday, August 6, 2008 Wednesday, August 20, 2008 Tuesday, September 9, 2008 Monday, September 15, 2008 V. CITY POINT OF CONTACT The sole source of contact regarding this RFP is Maurice Turner, Administrative Analyst, (949) 644-3057. Individuals or firms interested in submitting a proposal are asked not to contact other members of the City of Newport Beach staff in connection with the RFP prior to the announcement of the selected contractor. All written inquires related to this RFP are to be submitted in a sealed envelope to the City Corporation Yard Building A located at 592 Superior Avenue, Newport Beach. Inquiries should be labeled: CONFIDENTIAL (INQUIRY REGARDING PROPOSAL FOR STORM DRAIN & V - DITCH CLEANING) VI. CITY OF NEWPORT BEACH BUSINESS LICENSE The contractor must obtain and maintain in effect a valid City of Newport Beach Business License prior to commencement of work and during the entire time that work is being performed under the contract. Questions regarding business licenses should be addressed to the Revenue Division at (949) 644-3141. VH. PROFESSIONAL LICENSES. PERMITS, ETC. Contractor represents and warrants to the City that he/she has, and will keep in effect at all times during the term of a contract with the City, all licenses, permits, professional qualifications, and approvals of whatever nature that are legally required to practice his/her trade. Confirmation of this condition must be contained in the proposal. Compliance with any and all AQMD regulations is necessary as well. VIII. PROPOSAL CLOSING DATE IX. Contractor must submit one (1) original and two (2) complete copies of the proposal (copies must be marked "COPY"). All proposals must be delivered to the City Corporation Yard Building A located at 592 Superior Avenue, Newport Beach no later than 11:00 AM on Wednesday, August 20, 2008. Proposals should be labeled: (PROPOSAL FOR STORM DRAIN & V -DITCH CLEANING) Proposals will become a part of the official files of the City of Newport Beach and will not be returned. See Attachment A X. DESCRIPTION OF PROJECT AND INTENT (Scone of Work) See Attachment B XI. DELIVERABLES The Contractor is responsible for the following deliverables in keeping with the schedule described in subsection below: a. Proposal in the format and content explained in Section II of Attachment A. b. Completed Proposal Form on Attachment C containing total catch basin, v -ditch, and storm drain structure cleaning costs. XII. ATTACHMENTS Attachment A .................... Instructions and Conditions Attachment B .................... Description of Project Intent (Scope of Work) Attachment C....................Proposal Form Attachment D.....................Unit Prices Attachment E....................Statement of Compliance Attachment F....................Draft Agreement I. CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment A: Instructions and Conditions The following instructions and conditions apply to this RFP: A. Pre -Contractual Expenses Pre -contractual expenses are defined as expenses incurred by Contractor in: 1. Preparing a proposal in response to this RFP. 2. Submitting that proposal to the City of Newport Beach. 3. Negotiating with the City of Newport Beach any matter related to this RFP, proposal, and/or contractual agreement. 4. Any other expenses incurred by the Contractor prior to the date of an executed contract. The City of Newport Beach shall not, in any event, be liable for any pre -contractual expenses incurred by any Contractor. In addition, no proposal shall include any such expenses as part of the price proposed to perform the contract storm drain, catch basin and v -ditch cleaning services. B. Authority to Withdraw RFP and/or Not Award Contract The City of Newport Beach reserves the right to withdraw this RFP at any time without prior notice. Further, the City makes no representations that any agreement will be awarded to any Contractor responding to the RFP. The City expressly reserves the right to postpone the opening of proposals for its own convenience and to reject any and all proposals in response to this RFP without indicating any reasons for such rejection(s). The City also reserves the right to negotiate with the successful bidder concerning various alternatives. C. Pricing Approach The City of Newport Beach intends to award a contract based on a fixed annual contract price for the four-year term of this contract, renewable annually for two (2) one (1) year terms based on performance at the City's sole discretion. The primary purpose of the Unit Prices (Attachment D) proposal is to provide for additional contracted work during the course of the contract and to establish clear payment deductions for contract duties not rendered or not satisfactorily performed. Upon the second anniversary of the Commencement Date of the Contract and upon each anniversary of the Commencement Date thereafter, the Contract Amount shall be adjusted in proportion to the changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original Contract Amount by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made, and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables including in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. D. Right to Reject Proposals The City of Newport Beach reserves the right to reject any or all proposals submitted. Any award made for this engagement will be made to the Contractor, which, in the opinion of the City, is best qualified to execute the contract. The City also reserves the right to select and substitute unit prices for total costs. E. Proposal Evaluation Criteria Proposals will be evaluated on the basis of the response to all provisions of this RFP. The City of Newport Beach may use some or all of the following criteria in its evaluation and comparison of proposals submitted. The criteria listed are not necessarily an all-inclusive list. The order in which they appear is not intended to indicate their relative importance: 1. The Contractor's demonstrated awareness of safety in all operations. 2. The Contractor's responsiveness to the requirements of the contract as set forth in the RFP. 3. A demonstrated understanding of the offeror's work plan and other proposal documents. 4. A logical, proven methodology for carrying out the work tasks described in the proposal and developing contract deliverables. 5. The offerer's recent experience in conducting contracts of similar scope, complexity, and magnitude, particularly for government agencies. 6. The quality and quantity of personnel to be assigned to the contract, including educational background, work experience, and directly related recent storm drain, catch basin and v -ditch cleaning service experience. 7. The quality and quantity of equipment to be assigned to the contract. 8. A listing of the organizational structure of the proposed contract team. 9. The financial stability of the Contractor. 16. Recent references from local clients with particular emphasis on local government. 11. The proposed contract schedule. 12. The proposed contract costs. F. Compliance With Applicable Laws The Contractor shall have in his/her possession and be familiar with all safety regulations issued by the State Division of Industrial Safety and shall comply with these and all other applicable laws, ordinances, and regulations governing Affirmative Action programs. The Contractor shall provide all safeguards and protective devices and take any other action necessary to protect the health and safety of their employees on the job, safety of City employees and the public in connection with the performance of the work required by this contract. All Services rendered hereunder by Contractor shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local government agency having jurisdiction in effect at the time service is rendered. G. Suspension and/or Cancellation of Contract If the event the Contractor fails or refuses to timely perform in accordance with the agreement or if Contractor violates any provisions of the agreement, the Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the agreement forthwith by giving written notice. City may, in addition to the other remedies provided in the Agreement or authorized by law, terminate the Agreement by giving written notice of termination. In addition, the City reserves the right to terminate the agreement without cause upon thirty (30) days written notice. Upon termination, City will pay to Contractor that portion of compensation specified in the agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the agreement in the event of nonpayment by the City. H. Familiarity with Work By executing this Agreement, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. Contractor warrants that Contractor has investigated the site and is fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the City. City and Contractor agree that City has made no representation regarding the order or condition of any area or location for which Contractor is to provide services or that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of this Agreement. I. Assignment of Contract The Contractor shall not assign this contract without the written consent of the City I Workmanship and Supervision 1. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. 2. Work shall be performed by competent and experienced workers. 3. All personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent. All personnel shall wear identification badges or patches, and employees working adjacent to traffic lanes must wear safety vests. 4. Persons employed by the Contractor who are found not to be satisfactory by the City shall be discharged or reassigned by the Contractor on fifteen (15) days notice from the City. IC Equipment All vehicles and equipment used in conjunction with the work shall be maintained in a neat, clean, and orderly manner and shall be in good working order. The General Services 8 Director, or his authorized agent, may reject any vehicle or piece of equipment and order it removed from the service area(s). Vehicles and equipment must meet all current federal, State, and AQMD regulations. Contractor vehicles used within this contract shall, at all times, bear identification signs that the contractor is performing services for the City. The Operations Support Superintendent shall approve these signs prior to installation by the contractor. L. Safety Requirement 1. All work performed under this contract shall be performed in such a manner as to provide maximum safety to the public and where applicable, comply with all safety standards required by CAL -OSHA. The Operations Support Superintendent reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this contract. All contractor vehicles shall have a "W.A.T.C.H." work area traffic control manual at all times. 2. The Contractor shall maintain all service areas free of hazards to persons and/or property resulting from his/her operations. Any hazardous condition noted by the Contractor, which is not a result of his/her operations, shall be immediately reported to the Operations Support Superintendent. M. Claims by Contractor's Employees 1. The Contractor shall hold harmless the City and all of its agents, employees, and officers from any and all damages or claims, of any kind or nature that may be made or may arise directly or indirectly for the performance of duties by the Contractor. 2. Contractor shall not permit access into any City of Newport Beach or other private structures by any unauthorized persons. N. Liability for Damages 3. The Contractor shall be fully responsible for any and all damage done to City property, equipment, or other property of the public premises that result from the Contractor's operations under this contract. 4. The Contractor may insure the equipment, materials, and work to cover Contractor's interest in the same. The City will not, under any circumstances, be answerable or accountable for any loss or damage that may happen to said equipment, materials and work, or any part or parts thereof, used and employed in fully completing the contract. 5. Contractor shall indemnify and hold harmless the City, its City Council, boards, commissions, officers, agents, servants and employees from and against any and all claims and losses whatsoever, including reasonable attorney's fees, accruing or resulting to any and all persons, firms or corporations famishing or supplying work, services, materials, equipment or supplies in connection with the services, work or activities conducted or performed by Contractor pursuant to a the Agreement. O. Advertising No advertising of any kind or description, bill posters, printed, painted, or by the use of any other method application legible to human sight, shall appear on any buildings, structures, fences, canopies, posts, or signs except valid and authorized legal notices required to be placed thereon and except as may be specifically authorized in these general conditions. II. PROPOSAL FORMAT AND CONTENT Proposals should be typed as briefly as possible. They should not include any elaborate or unnecessary promotional material. The following order and content of proposal sections should be adhered to by each Contractor: A. Cover Letter A cover letter not to exceed three (3) pages in length should summarize key elements of the proposals. The letter must be signed by an individual authorized to bind the Contractor. The letter must stipulate that the proposed price will be valid for a period of a minimum of six (6) years. Indicate the address and telephone number of the Contractor's office located nearest to Newport Beach, California, and the office from which the contract will be managed. B. Background and Approach The Background and Approach Section should describe the proposing firms understanding of the City and the work to be done. C. Methodology This section should clearly describe the methodology to be used to carry out the specific work tasks described in the Work Plan, including descriptions of the type(s) of equipment to be utilized in the City. D. Work Plan Describe the sequential work tasks you plan to carry out in accomplishing this contract. Indicate all key deliverables and their contents. E. Contract Organization and Staffing Describe your approach and methods for managing the contract. Provide an organization chart showing all proposed contract team members. Describe the responsibilities of each person on the contract team. Identify the Contract Director and/or Manager and the person who will be the key contact with the City of Newport Beach. Indicate how many hours each team member will devote to the contract by task, along with a statement indicating the availability of the members of the contract team for the duration of the contract. Please E include resumes for key members of the contract team with particular emphasis on their experience and professional affiliation. Also include any additional information or staff support required from City personnel during the course of the RFP preparation. F. Related Experience Describe recent, directly related public agency experience. Include on each listing the name of the agency; description of the work done; primary agency contact, address and telephone number; dates for the contract; name of the Contract Director and/or Manager and members of the proposed contract team who worked on the contract, as well as their respective responsibilities. At least three references should be included. For each reference, indicate the reference's name, organization affiliation, title, complete mailing address, and telephone number. The City of Newport Beach reserves the right to contact any of the organizations or individuals listed. G. Contract Schedule Provide a schedule such that catch basin, v -ditch, and storm drain structure cleaning shall commence in the first week of August and be completed no later the end of December. H. Cost Data Indicate the total annual cost using the Proposal Form (Attachment C) for which you will conduct the contract based upon the information provided, as well as the Unit Prices (Attachment D). L Statement of Compliance Contractors must submit a Statement of Compliance (Attachment E) with all parts of the Request for Proposal and Draft Agreement (Attachment F) terms and conditions, or a listing of exceptions and suggested changes, along with a description of any cost implications or schedule changes the exceptions and/or changes cause. The Statement of Compliance must declare either: 1. This proposal is in strict compliance with the Request for Proposal and Draft Agreement and no exceptions to either are proposed; or 2. This proposal is in strict compliance with the Request for Proposal and Draft Agreement except for the items listed. For each exception and/or suggested change, the Contractor must include: a. The suggested change in the RFP or rewording of the contractual obligations. b. Reasons for submitting the proposed exception or change. c. Any impact the change or exception may have on contract costs, scheduling, or other considerations. Please be advised that the City's indemnity and insurance obligations are non-negotiable. I J. Other Information Include any other information you consider to be relevant to the proposal. Additional optional services may be provided at the discretion of the Contractor. K Employment Provision Contractor agrees that in carrying out its responsibilities under this agreement, and in particular with regard to the employment of persons and sub -contractors working on the contract, it will not discriminate on the basis of race, color, creed, national origin, religion, sex, age, or handicap. In the event any of the work performed by Contractor hereunder is subcontracted to another person or firm (with approval of the City as required herein), sub- contract shall contain a similar provision. L. Insurance Coverage On or before the commencement of the term of the Agreement, Contractor shall furnish the City with certification showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 1, 2, and 3 below. Such certificates, which do not limit the Contractor's indemnification, shall also contain substantially the following: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer afforded coverage shall provide thirty (30) days advance notice to the City of Newport Beach by certified mail." 1. Coverage a. Commercial General Liability: $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. Coverage shall include third party liability risks, including without limitation, contractual liability. The aggregate limit shall not be less than $4,000,000. b. Worker's Compensation: Statutory coverage as required by the State of California. c. Commercial Auto Liability and Property Insurance: $2,000,000 combined single limit per accident for bodily injury and property damage. 2. Please refer to Section 8 (Insurance) of Draft Agreement (Attachment F) for further insurance requirements. M. Guarantees A Faithful Performance Warranty Bond in the amount of one hundred percent (100%) of the contract price shall be required for the entire length of the contract period. Unless otherwise specified, the Contractor shall guarantee that the work performed under the Contract will be performed to the HIGHEST INDUSTRY STANDARDS specified in 12 the RFP and remain as such for the term of the contract. Whenever, in these specifications, written guarantees are requested, or specified, the Contractor shall guarantee the products or installations therein described for the time specified and no further guarantee shall be required. If defective material or workmanship is discovered by the City in the work proposed within the contract, and this defective material or workmanship requires repairs to be made under this guarantee, all such repair work shall be done by and at the expense of the Contractor. Should the Contractor fail to repair such damage within five (5) working days thereafter, the City may be the necessary repairs and charge the Contractor with the immediate attention, the City shall have the right to repair the defect or damage and charge the Contractor with the actual cost of all labor and material required. N. Pre-proposal Meeting All parties interested in submitting proposals for storm drain, catch basin and v-ditch cleaning services are instructed to attend a mandatory pre-bid meeting. The meeting is scheduled for Wednesday, August 6, 2008 at 8:00 a.m., 592 Superior Avenue, Building A, Newport Beach, California. Present at this meeting will be representatives of the City of Newport Beach General Services Department. 13 CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment B: Description of Project Intent (Scope of Work) I. INTENT The intent of these specifications is to provide catch basin and v -ditch cleaning services for 3,208 catch basins, 16,479 linear feet of v -ditches, and 28 storm drain structures throughout the City of Newport Beach on a yearly basis. II. DESCRIPTION OF PROJECT (SCOPE OF WORK) Furnish all labor, equipment, materials, and supervision to perform maintenance as described herein including, but not limited to, the following: A. Thoroughly clean all catch basins, v -ditches, and storm drain structures in the City on a yearly basis between August I and December 31. III. WORKING HOURS Normal working hours shall be within an eight-hour day between the hours of 7:00 AM and 3:00 PM, Monday through Friday. No motorized equipment shall be operated in catch basins or v -ditches before 7:00 AM nor after 3:00 PM. IV. TERM OF CONTRACT Unless earlier terminated in accordance with Section 20 of the Agreement, the Term of the Agreement shall be for a period of four (4) years. The term shall commence on October 1, 2008, after City Council approval of the contract, and upon receipt and approval of all required bonds and insurance. The term of the Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate the Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under the Agreement. V. LEVEL OF MAINTENANCE All work shall be performed in accordance with the HIGHEST INDUSTRY STANDARDS, as stated in the enclosed maintenance specification description. Standards and frequencies may be modified from time to time as deemed necessary by the City for the proper maintenance of the sites. 14 If, in the judgment of the City, the level of maintenance is less than that specified herein, the City shall, at its option, in addition to or in lieu of other remedies provided herein, withhold appropriate payment from the Contractor until services are rendered in accordance with specifications set forth within this document and providing no other arrangements have been made between the Contractor and the City. Failure to notify of a change and/or failure to perform an item or work on a scheduled day may, at the City's sole discretion, result in deduction of payment for that date, week, or month. Payment will be retained for work not performed until such time as the work is performed to City standard. The Contractor is required to correct deficiencies within the time specified by the City. If noted deficient work has not been completed, payment for subject deficiency shall be withheld for current billing period and shall continue to be withheld until deficiency is corrected, without right to retroactive payments. VI. SUPERVISION OF CONTRACT All work shall meet with the approval of the City of Newport Beach General Services Department. There shall be a minimum of a weekly meeting with the Contractor and the City representative to determine progress and to establish areas needing attention. A monthly maintenance schedule will be submitted in writing to the City by the first day of said month. The supervisor of this contract shall be available to meet with the City's representative daily during working hours, as necessary. Any specific problem area which does not meet the conditions of the specifications set forth herein shall be called to the attention of the Contractor and if not corrected, payment to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. This Scope of Work is intended to cover all labor, material and standards of workmanship to be employed in the work called for in this work plan or reasonably implied by terms of same. Work or materials of a minor nature which may not be specifically mentioned, but which may be reasonably assumed as necessary for the completion of this work, shall be performed by the Contractor as if described in the specifications. VIII. CORRESPONDENCE All correspondence shall be addressed to Maurice Turner, Administrative Analyst, General Services Department, City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California 92663-3884. IX. PROVISIONS FOR EXTRAS No new work of any kind shall be considered an extra unless a separate estimate is given for said work and the estimate is approved by the City in writing before the work is commenced. The Contractor will be required to provide before and after photographs of 15 safety items or emergency repairs. Documentation of contract compliance may be required on some occasions. X. WATER The Contractor will be issued water meter(s), which must be utilized when filling equipment from City fire hydrants. The Contractor will be responsible for the deposit required to obtain the water meter(s) and all charges stemming from the use of City water. XI. DISPOSAL The Contractor may utilize the dump rack at the Corporation Yard to dispose of debris or such other refuse in bins as provided by the City. Said dumping shall occur between the hours of 7:30AM and 3:30PM Monday through Friday only. The City shall be responsible for the disposal. Contractor shall furnish records of material collected and disposed of at the Corporation Yard on a monthly basis to the City. XII. RECORDS AND SCHEDULE FUR The Contractor shall keep accurate records concerning all of his/her employees or agents. The Contractor shall provide this information in an organizational chart as changes in staffing occur. Additionally, the Contractor shall provide the City with names and telephone numbers of emergency contact employees. The Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the Operations Support Superintendent. This report should also contain a description of work performed, including man-hours, equipment, and any additional work, which the Contractor deems to be beyond the scope of the contract. Payment for this work will not be authorized unless the additional work, and costs thereof, are first approved in writing by the City. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service, and a description of the action taken from the City call. The Contractor shall, within fifteen (15) days of the effective date of an executed agreement, prepare and submit a written cleaning schedule to the Operations Support Superintendent. This schedule shall clearly identify the cleaning tasks required by this agreement and days they are scheduled to be performed in each particular area. If it is necessity to make periodic revisions to this maintenance schedule, a modified schedule must be submitted to the Operations Superintendent for approval prior to the date the changes are to take effect. Otherwise, it is intended that the Contractor will develop a permanent schedule, which will allow the City to monitor the Contractor's progress and allow residents to move vehicles, etc., to further ease the cleaning of storm drains & v - ditches. The Contractor shall permit the City to inspect and audit its books and records regarding City -provided services only at any reasonable time. 16 The Contractor will provide the City with names and telephone numbers of at least two qualified persons who can be called by City representatives when emergency maintenance conditions occur during hours when the Contractor's normal work force is not present in the City of Newport Beach. These Contractor representatives shall respond to said emergency within thirty (30) minutes from receiving notification. XIV. CONTRACTOR'S OFFICE Contractor is required to maintain an office within a 30 minutes response time of the job site and provide the office with phone service during normal working hours. During all other times, a telephone answering service shall be utilized and the answering service shall be capable of contacting the Contractor by cell phone or pager. Contractor shall have a maximum response time of thirty (30) minutes to all emergencies. There will be no on-site storage of equipment or materials. Contractor will have full responsibility for maintaining an office and a yard. XV. SCHEDULES A. Annual Schedule 1. The Contractor shall provide an annual schedule indicating the time frames when items of work shall be accomplished per the performance requirements. 2. The Contractor shall complete the schedule for each functional area in a manner which shall correspond to the monthly schedule. 3. The annual schedule shall be submitted for City approval within fifteen (15) calendar days after effective date of the contract. 4. The Contractor shall submit revised schedules when actual performance differs substantially from planned performance. B. Monthly Schedule 5. Monthly schedule forms shall be provided by the Contractor indicating the major items of work to be performed in accordance with the performance requirements and further delineate the time frames for accomplishment by day of the week and by morning and afternoon. 6. Monthly schedule shall be coordinated with street sweeping and tidal events in order to minimize conflicts at the work site and accomplish work items. 7. The Contractor shall complete the schedule for each item of work and each area of work. 8. The initial schedule shall be submitted one week prior to the effective date of the contract. Thereafter, it shall be submitted monthly on the first Monday of the month for City approval, prior to scheduling work for the upcoming month. 17 M1 9. Changes to the schedule shall be received by the Operations Support Superintendent at least twenty-four (24) hours prior to the scheduled time for the work. 10. Failure to notify of a change and/or failure to perform an item of work on a scheduled day may result in deduction of payment for that date or week. 11. The Contractor shall adjust his/her schedule to compensate for all holidays and rainy days. Maintenance and litter removal shall be scheduled for all holidays and rainy days, unless otherwise indicated by the City. Performance on Schedule The Contractor has been provided the maximum latitude in establishing work schedules which correspond to its manpower and equipment resources. The Contractor has also been provided the opportunity and procedure for adjusting those schedules to meet special circumstances. Therefore, all work shall be completed on the day scheduled. Performance Durine Inclement Weather & Tidal Events 1. During the periods when inclement weather and tidal events hinders normal operations, the Contractor shall adjust his/her work force in order to accomplish those activities that are not affected by weather. 2. Failure to adjust the work force to show good progress on the work shall result in deduction of payments to reflect only the work actually accomplished. 3. The Contractor shall immediately notify the Operations Support Superintendent when the work force has been removed from the job site due to inclement weather or other reasons. if the Operations Support Superintendent cannot be reached, the contractor shall notify the Storm Drain/Street Sweeping Supervisor. 18 CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment C. Proposal Form STRUCTURES Catch Basins (3,208 distinct catch basins) V -ditches (16,479 linear feet) Storm Drain Structures (28) $ Total Annual Cost $ Signature 19 Date Annual Cost CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment D: Unit Prices A. The Contractor agrees that for requested and/or required changes in the scope of work, including additions and deletions on work not performed, the Contract Sum shall be adjusted in accordance with the following unit prices, where the City elects to use this method in determining costs. B. Contractor is advised that the unit prices will enter into the determination of the contract award. Unreasonable prices may result in rejection of the entire bid proposal. Unit prices listed below refer to all items installed and the Construction Documents and include all costs connected with such items; including but not limited to, materials, labor, overhead, and profit for the contractor. C. The unit price quoted by the Contractor shall be those unit prices that will be charged or credited for labor and materials to be provided regardless of the total number units and/or amount of labor required for added or deleted items of work. D. All work shall be performed in accordance with specifications described in the RFP. Signature FUNCTION COST/UNIT OF MEASURE Catch Basin $ /location V -ditch foot Storm Drain Structure $ /hour (time & materials) 20 Date CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment E. Statement of Compliance Each proposal must be accompanied by a signed Statement of Compliance. The Contractor must sign one of the declarations stated below. A. The person signing below declares that the proposal submitted by (Name of Firm) to perform storm drain, catch basin & v - ditch cleaning as described in the compliance with the instructions, Work, and Draft Agreement. RFP dated July 30, 2008 was prepared in strict conditions, and "terms of the RFP, the Scope of Signature Date Printed Name and Title B. By signing below, the Contractor states that the proposal submitted by (Name of Firm) has been prepared in consideration of and with exception to some of the terms of the RFP, Scope of Work, and Draft Agreement. The Contractor is advised that exceptions and/or a suggested change to any of the terms of the RFP, the Scope of Work, or Draft Agreement must be submitted in writing as an attachment to the proposal submittal. By signing below, the Contractor declares that the proposal includes a statement that identifies each item to which the Contractor is taking exception or is recommending change, includes the suggested rewording of the contractual obligations or suggested change in the RFP, identifies the reasons for submitting the proposed exception or change, as well as, any impact the change or exception may have on contract costs, scheduling, or other considerations. The City reserves the right to reject any declarations that are not accompanied with the required documentation as described above. Signature Date Printed Name and Title 21 CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment F. Draft Agreement CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this 9th day of September of 2008, by and between the City of Newport Beach, a Municipal Corporation and Charter City ("City"), and, a located at ("Contractor"), is made with reference to the following Recitals: RECITALS WHEREAS, the City desires to obtain contract services for the cleaning of 28 storm drain structures, 3,208 catch basins and 16,479 linear feet of v -ditches. WHEREAS, on July 30, 2008 a Request for Proposals (RFP) requesting proposals for the cleaning of storm drain structures, catch basins and v -ditches was mailed to firms. WHEREAS, ("Contractor") submitted the lowest bid among the firms which responded to the RFP. WHEREAS, the Contractor desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, the Parties agree as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the Term of this Agreement shall be for a period of four (4) years. The term shall commence on October 1, 2008, after City Council approval of this Agreement, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to 22 terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Contract Services") as described in the RFP and the Contractor's proposal. The RFP and Contractor's Proposal are attached hereto as Exhibit A and incorporated by this reference. The Contract Services shall be performed at least as frequently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of maintenance as necessary to ensure highest industry standards of maintenance. 3. WORKMANSHIP. SUPERVISION, AND EOMMENT A. All work shall be performed in accordance to the highest industry standards of maintenance such that storm drains, catch basins and v -ditches are clear of debris and plant material. B. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. C. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. D. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. F. All work shall be performed in accordance with the highest maintenance standards. G. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor and clearly post "Serving the City of Newport Beach." 23 H. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor the sum of $ a year for all work and services to be performed under this Agreement on an annual basis as provided herein and in Exhibit A ("Contract Amount"). City shall pay Contractor the unit prices set forth in Exhibit B, which is attached hereto and incorporated herein by this reference, for all work and services to be performed under this Agreement that are in addition to the annual services and which are approved by the City in writing prior to the performance of the work. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. A. Contractor shall submit monthly invoices to City describing the work performed the preceding month. Contractor's bills shall include the total number of catch basins, linear feet of V -ditches cleaned, and the total number of storm drain structures, the location of all catch basins, V -ditches, and storm drains cleaned, the percentage of the total annual work completed, the date the services were performed, the location and number of hours spent on all work billed on an unit or hourly basis. For work to be performed on an annual basis, the City shall pay Contractor based on the percentage of the total work completed. For unit priced work approved by the City in writing that is in addition to the annual work, the City shall pay Contractor based on the Unit Prices contained in Exhibit B. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. B. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit B. C. Upon the second anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount to be paid by the City as set forth above and in Exhibit A and the unit prices set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original amounts by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for 24 the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables including in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. 5. 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 Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 6. EXAMINATION OF WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 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 25 authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 8. 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 Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the rM 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 two million dollars ($2,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insureds as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are 27 10. commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the City Administrator within (S) days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. ADNIMSTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. 28 B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional services as requested by the Administrator. Additional services, may be billed in accordance with the unit cost proposed by the Contractor Exhibit B. B. Contractor shall perform additional/emergency services as requested by the Administrator. Contractor must obtain written authorization from the City Administrator prior to the performance of any additional/emergency services. Additional services, may be billed in accordance with the per unit cost proposed by the Contractor in Exhibit B. C. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractors unit costs specified in Exhibit B. In the event the location is withdrawn for a period of less than a full four (4) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fav Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 0 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, Contractor, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. 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 termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658-8915 30 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: 20. TERMINATION/DEFAULT A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate cleaning standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 21. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 22. WAIVER 31 A waiver by City 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. 23. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 24. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 25. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26. 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. 27. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: LaVonne Harkless, City Clerk APPROVED AS TO FORM: Aaron Harp, Assistant City Attorney 33 CITY OF NEWPORT BEACH A Municipal Corporation By: Ed Selich, Mayor Contractor By: Title: CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Addendum I. Undated Unit Prices The following section regarding Unit Prices of Storm Drain Structures has been revised from an hourly rate based on time & materials to an hourly rate based on 4 -person crew & crew truck: • Attachment D: Unit Prices (pg. 20) II. Inspection Records The complete collection of blank Inspection Records for Strom Drains and V -ditches will be provided to all Pre -proposal Meeting attendees. Exhibit B CITY OF NEWPORT BEACH Request for Proposal Storm Drain & V -ditch Cleaning Attachment D. Unit Prices A. The Contractor agrees that for requested and/or required changes in the scope of work, including additions and deletions on work not performed, the Contract Sum shall be v4usted in accordance with the fellowing unit prices, where the City elects to use this method in determining costs. B. Contractor is advised that the unit prices will enter into the detemtination of the contract award. unreasonable prices may result in rejection of the entire bid proposal - Unit prices listed below refer to all items installed and the Construction Documents and include all costs connected with such item; including but not limited to, materials, labor, overhead, and profit for the contractor. C. The unit price quoted by the Contractor shall be those unit prices that wit be charged or credited far labor and materials to be provided regardless of the total number units andlor amount of labor required for added or deloted items of work. D. All work shall be performed in accordance with specifications described in the RFP. Signature Catch Basin S ?'7. S r7 /location V -ditch s • 3D Ainear foot Storm Drain Structure S - §b Aho., (time & materials) 15 ACORD, CERTIFICATE OF LIABI.�ITY INSURANCE 09iii2 08 PRODUCER (213)SS3-8400 FAX (213)SS3-8466 Wilshire Insurance Agency 83 S Wilshire Blvd 4th Floor Los Angeles, CA 90017-2603 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, INSURERS AFFORDING COVERAGE NAIC # INSURED United Storm Water, Inc. 14000 East Valley Blvd. City of Industry, CA 91746 IVSURERA' Nautilus Insurance Co. INSURERS: Great Divide Insurance Co. INSURERC INSURER D: INSURER E: rnUPMAT:PC THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN9R TYPE OF INSURANCE POLICY NUMBER Y IECTNE POLICY EXPIRATION UNIT$ GENERAL LIABILITY ECPCO20000411 11/16/2007 11/16/2008 EACHOCCURRENCE S 1,000100 X COMMERCIAL GENERAL IIABNTY WTVTO RENTED 5 S0 , OO CLAIMSLIAOE OCCUR MEDEXPO"PPnFANXY„I S 5'QQ A PERSONAL S ADV WIRY S 1,000,0 GENERALAGGAEGATE S 11000100 G --'NL AGGREGATE LIMIT APPLES PER PRODUCTS-COMWOPAGG S 11000100 X POUCY ,ERCT 7 LOC AUTOMOBILE X LIABILITY ANY AUTO BAP020000311 11/16/2007 11/16/2008 COMBINED SINGLE LIMIT S M6100i'n" 1,000.00 BODRYINJURY IFIL Pe<TIIO S B X X ALLOWNEDAVTOS SCHEDULED AUTOS HIREDAUTOS NON.OWNEDAUTDS BODILY INANRY (Pa �`I) S PROPERTY DAMAGE S (PIY+LDIINO X X MCS -90 CA9948 GARAGE LIABILITY AUTO ONLY-EAACCIDENT i OTHER THAN EA ACC S ANY AUTO AUTO ONLY: PGG 5 EXCESSIUMBRELALWBLLITY FFX020000SII 11/16/2007 11/16/2008 EACH OCCURRENCE S 5,000.00 X OCCUR ❑ CLAIMS MADE AGGREGATE S S r O00 OO S A S DEDUCTIBLE X RETENTION 5 10 , DOE S MORNERS COMPENSATION AND WCA020001811 01/01/2008 01/01/2009 XWCSTAM OTH• B EMPLOYERS UABIUTY ANY PROPRIETORMARTNEREXECUTIVE OFFlCEPMEL9ER EXCLUDED' E.L.EACHACCIOEMT S 1'000'00( El DISEASE • EA EMPLOYEE S 1,000.00( 1 deae10A v 4d SPECIAL. PROVISIONS IRA M • POLICY OT S 1 000 , OO E.L. DISEA: MI OTHER DESCRIPTION OFOPERATIONS!LO An ONS IVEHICLESf EXCLUSIONSADDEDUTENDORSEMENT$SPECIAL PRO E CITY, ITS ELECTED OR APPOINTED OFFICERS, OFICIALS, EMPLOYEES, AGENTS AND VOLUNTEERS ARE NAMED AS ADDITIONAL INSUREDS WITH RESPECT TO LIABILITY ARISING OUT OF WORK PERFORMED BY R ON BEHALF OF THE CONTRACTOR. EXCEPT 10 DAY NOTICE OF CANCELLATION FOR NONPAYMENT OF PREMIUM. SHOULD ANY OF THE ABOVE DESCRIBED POLICES BE CANCELLED BEFORE THE EXPRAMIN DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL CITY OF NEWPORT BEACH '30 DAYS WRIMN NOTICE TOTHE CERIWICATENOLAER NAMED TO THE LEFT. 3300 NEWPORT BLVD. BUT FAILURE TO MALL SUCH NOTICE SMALL IMPOSE NO OBLIGATION OR LIABILITY P.O. BOX 1768 OF ANY KING UPON THE INSURER. ITS AGENTS OR REPRESENTATIVES NEWPORT BEACH, CA 92658 AUTNOR gLPPRESENTATNE 1 Policy A: ECPCO20000411 UNITED PUMPING SERVICE, INC' ENDORSEMENT UNITED STORM WATER, IVC - This endorsement forms a part of the policy to which it is attached. Please read it carefully. This endorsement modifies insurance provided under the following: ENVIRONMENTAL COMBINED POLICY Section III — Who is an Insured is amended to include as an insured, with respect to Coverage A and B, any person(s) or organization(s) when you and such persons) or organizatlon(s) have agreed in a n et agrreem nt that such person(s) or organization(s) be added as an additional insured on your policy. Such written co ten agreement must be in effect prior to the occurrence giving rise to the claim or suit for which the person(s) or organization(s) seeks coverage. Such additional insured status applies only: 1. With respect to your work performed for such Person(s) or organization(s) in the performance of your ongoing operations for the additional insured; or nd 2 products - completed perationsork hazard, nl when required by the written coned for such person(s) or tract Sed mentP►oducts- With respect to damages caused by your work, as described above, the coverage provided hereunder shall be primary and not contributing with any other insurance available to those person(s) or organization(s) with which you have so agreed in a written contract or written agreement. ® 2008 by 6"" Specialty Undenvdting Marque LLC, an affftW at Nauaas trrsurdnceCV0ady end heal Divide breruance Camparry. All dgm reserved. O 1985-2008 by Mraunxrce Servkea oMca lna, matedal used by p�531M Page t at 1 ECP 1004 10 06 Policy #: ECPCO20000411 I UNITED PUMPING SERVICE, INC. ENDORSEMENT UNITED STORM WATER, INC. This endorsement forms a part of the policy to which it is attached. Please read it carefully. BUSINESS AUTO - ADDITIONAL INSURED WHEN REQUIRED BY CONTRACT OR AGREEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM Section II - Liability Coverage A. - Coverage, 1. Who is an insured, is amended to add: d. Any person or organization to whom you become obligated to include as an additional insured under this policy, as a result of any contract or agreement you enter into, excluding contracts or agreements for professional services, which requires you to furnish insurance to that person or organization of the type provided by this policy, but only with respect to liability arising out of your operations or premises owned by or rented to you. However, the insurance provided will not exceed the lesser of: 1. The coverage and/or limits of this policy; or 2. The coverage and/or limits required by said contract or agreement. ALL OTHER TERMS AND CONDITIONS OF THE POLICY SHALL APPLY AND REMAIN UNCHANGED. 02006 by 80" Sp IMI Undenvd ft Managers LLC. an afriate M Nauelm IMuraAW company ab Greal Divide Imuran company. AN righty nR bd. O 1968-2006 by Ine mw Se Jon OEm. W., m t&ft umd by pemYsWw ENV 2223 12 07 Page t of 1 United Pumping Service, Inc. Policy $: ECPCO20000411 United Storm Water, Inc. ENDORSEMENT This endorsement forms a part of the policy to which it is attached. Please read it carefully. It is agreed that the Company, in the event of any payment under this policy, waives its right of recovery against any Principal, but only at the specific written request of the Named Insured either before or after loss, wherein such waiver has been included before loss as part of a contractual undertaking by the Named Insured. This waiver shelf apply only with respect to losses occurring due to operations undertaken as per the specific contract existing between the Named Insured and such Principal and stall not be construed to be a waiver with respect to other operations of such Principal in which the Named Insured has no contractual Interest. No waiver of subrogation shall directly or indirectly apply to any employee, employees or agents of either the Named Insured or of the Principal, and the Company reserves its right or lien to be reimbursed from any recovery funds obtained by any injured employee. This waiver does not apply in any jurisdiction or situation when; such waiver is held to be illegal or against public policy or in any situation wherein the Principal against whom subrogation Is to be waived is found to be solely negligent. 01006 by aedlry SpKbky Undenwft Manges LLC, m arRiate of navMu Imwnnce Company and Great MIG insurenm Canpany. AB d8hv ruervb. O 1885.2666 by Inwianm Semlme Ofllce, kc., meledei ueed by permission. EW 2004 0906 Page 1 of 1 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY ►VC 0003 13 (Ed. 4-84) WAIVER OF OUR 141GI-IT TO RECOVER FROM 0111 HIS ENDORSE3IENT We have the right to recover our payments from anyone liable for an injury covered by this Policy. We will not enforce our right againsl the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.I This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule CITY OF NEWPORT BEACH 3300 NEWPORT BLVD. P.O. BOX 1768 NEWPORT BEACH, CA 92658 This endor;ernon changes the policy to which it is attached and is effective on the date issued unless otherwise stated (The inforniza nn helow is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsantcm Effective: 111/08 — l/1/IIB insured: UNITED PUki PING SERVICE. INC. UNITED STORM WATER. INC. Insurance C'nminmy: GREAT M VIDE INS. CO. WC fill 03 13 (Ed. 4.94) Pniicv No.: N'CAM01811 Countersigned 6y Endorsement No. I q CITY OF NEWPORT BEACH BUSINESS TAX CERTIFICATE THIS TAX PAYMENT EXPIRES: 10/31/2008 ACCOUNTNUMBER: BT02112101 SERVICE ADDRESS: UNITED STORM WATER INC 14000 E VALLEY BLVD INDUSTRY CA 91746 BUSINESS CATEGORY: MISC SPECIAL TRADE CONTRAC SELLERS PERMIT: NO SELLERS u OWNER/PRINCIPAL NAME: PERRY JR, EDUARDO OWNERSHIP TYPE: CORPORATION TAX INCLUDES PAYMENT FOR: 0.00 EMPLOYEES DATE OF ISSUE: 11/21/2002 PRINT DATE: 11/08/2007 CITY OF NEWPORT BEACH BUSINESS TAX CERTIFICATE THIS TAX PAYMENT EXPIRES: 10/31/2008 ACCOUNTNUMBER: BT02112101 OWNER/PRINCIPAL NAME: SERV ICE ADDRESS: UNITED STORM WATER INC PERRY JR, EDUARDO 14000 E VALLEY BLVD` N OWNERSHIP TYPE: INDUSTRY CA 91746 BUSINESS CATEGORY: MISC SPECIAL TRADE CONTRAC SELLERS PERMTP. NO SELLERS A� 3 ` \AY. TAX INCLUDES PAYMENT FOR: 0.00 EMPLOYEES DATE OF ISSUE: 11/21/2002 PRINT DATE: 11/08/2007 CITY OF NEWPORT BEACH GENERAL SERVICES DEPARTMENT CONTRACT BOND NO. SU 5025503 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 2,742.00 - Per Year being at the rate of $ 1.8 % per thousand of the Contract price. WHEREAS, the City Council of the City of Newport Beach, State of California, by motion adopted, awarded to United Storm Water, hereinafter designated as the "Principal°, a contract for cleaning of storm drain structures, catch basins and v -ditches in the City of Newport Beach, in strict conformity with the Contract Documents maintained in the General Services Department of the City of Newport Beach, all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract; NOW, THEREFORE, we, the Principal, and United Storm Water, Inc. , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and finely bound unto the City of Newport Beach, in the sum of One -hundred Fifty -Two Thousand Three -hundred Thirty-four and 701100 Dollars ($152,334.70) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the wort(, 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. POWER OF ATTORNEY 4 #. r Know All Men By These Presents: That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its principal office in Kansas City, Missouri (hereinafter referred to as the "Company") does hereby appoint Raymond E. Gail and William J. Shupper of Rancho Cucamonga, CA (EACH) Its true and lawful Attomey(s}in-Fact, to make, execute, seal, and deliver from the date of issuance of this power for and on Its behalf as surety, and as its act and deed: Any and all bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee the payment or collection of any promissory note, check, draft or letter of credit. This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond Within the dollar limit of authority as set forth herein. The Company may revoke this appointment at any time. The execution of such bonds and undertakings in pursuance of these, presents shall be as binding upon the said Company as fully and amply to all intents and purposes, as If the same had been duty executed and acknowledged by its regularly elected officers at its principal office in Kansas City, Missouri. This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by the undersigned Secretary as being in full force and effect: "VOTED, That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary, or the Secretary shall have the power and authority to appoint agents and attorneys -in -fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizanc es, contracts of indemnity and other writings, obligatory in the nature thereof, and any such officers of the Company may appoint agents for acceptance of process This Pourer of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution adopted by the unanimous consent of the board of Directors of the Company on March 3, 2003: VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees designated to writing and filed with the Secretary, and the signature of the Secretary, the seat of the Company, and certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to the resolution adopted by the Board of Directors on March 3, 2003, and any such power so executed, sealed and certified with respect to any bond or undertaking to which it is attached, shall continue to be valid and binding upon the Company. OOML0013 00 03 03 Page 1 of 2 Printed in U.S.A. In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their authorized officers, this 1 —st day of May 20 08 c_ E 0 A Attested and Certified Arch Insurance Company ce sEu @ Itneel Martin J. Nil , Secretary STATE OF PENNSYLVANIA SS COUNTY OF PHILADELPHIA SS I, Brian C. Kuhn, a Notary Public, do hereby certify that Martin J. Nilsen and J. Michael Pete personally known to me to be the same persons whose names are respectively as Secretary and Vice President of the Arch Insurance Company, a Corporation organized and existing under the laws of the State of Missouri, subscribed to the foregoing Instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly authorized signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said corporation and as their own free and voluntary acts for the uses and purposes therein set COMMONWBALIHOP NCR SEAL Edon C. Kahn, Naay public Brian C. ftnNotary Public aryofphihfeiie,PhiladeiphiaCounty My commission expires 12-06-2011 CERTIFICATION My commission ea irmDecenakr06,2011 I, Martin J. Nilsen, Secretary of the Arch Insurance Company, do hereby certify that the attached Power of Attorney dated May 1, 2008 on behalf of the person(s) as listed above is a true and correct copy and that the same has been in full force and effect since the date thereof and is in full force and effect on the date of this certificate; and i do further. certify that the said J_ Michael Pete, who executed the Power of Attorney as Vice President, was on the date of execution of the attached Power of Attorney the duly elected Vice President of the Arch Insurance Company. IN TESTIMONY WHEREOF, I h v �he uftto n cribed my name and ed the corpo s I of the Arch Insurance Company on this day of L ,: 20 . Martin J. NJ &11 Secretary This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein and they have no authority to bind the Company except in the manner and to the extent herein stated. PLEASE SEND ALL CLAIM INQUIRIES RELATING TO THIS BOND TO THE FOLLOWING ADDRESS: Arch Contractors & Developers Group 135 N. Robles Ave., Ste. 825 Pasadena, CA 91101 OOML0013 00 03 03 Page 2 of 2 Printed in U.S.A. CITY OF NEWPORT BEACH GENERAL SERVICES DEPARTMENT CONTRACT BOND NO. SU 5025503 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ being at the rate of $ 1.8 2,742.00 - Per Year per thousand of the Contract price. WHEREAS, the City Council of the City of Newport Beach, State of California, by motion adopted, awarded to United Storm Water, hereinafter designated as the "Principal", a contract for cleaning of storm drain structures, catch basins and v -ditches in the City of Newport Beach, in strict conformity with the Contract Documents maintained in the General Services Department of the City of Newport Beach, all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract; NOW, THEREFORE, we, the Principal, and United Storm water, Inc. , 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 One -hundred Fifty -Two Thousand Three -hundred Thirty-four and 701100 Dollars ($152,334.70) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. 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 or to the specifications accompanying the same 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 four (4) years following the date of formal acceptance of the Project by the City. This Bond is a a (1) Year Bond with renewal by Continuation Certificate on an annual basis. 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 22nd day of mber 2008. United Storm Water, Inc. loo Name of Contractor t orized SioaturefTitle Arch Insurance Company Name of Surety Agent Signature 135 N. Los Robles Ave, # 825 A 1A/7 Al - Address of Surety LAYInt Whe and Title William J Shupper - Attorney -in -Fact (62 6) 639-5295 Telephone NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED CALIFORNIA ALL-PURPOSE ACKN• aY a� artir,-yr,� e�'i`- -sr' `�X'arS e7': e7- brr•m7 a�' e+,`- 3" `:)��' :a�r'ny ar' aY�" a7� er' `�sr r» STATE OF CALIFORNIA County of San Bernardino On Date before me, Stacia C Baker Notary Public Here Insert Name and Title of the Officer personally appeared William J. Shupper Name(s) of Signer(s) STACIA C. BAKER Commission # 1776731 Notary Public - California Z ' v San Bernardino County Comm. Oct 29, 2011 who proved to me on the basis of satisfactory evidence to be the person(-&) whose name(&) is/a4:9 subscribed to the within instrument and acknowledged to me that he/sho4hoy executed the same in his/klerf hol - authorized capacity(4es), and that by his/4wAh& signature(&) on the instrument the person(&), or the entity upon behalf of which the person(.&) acted, executed the instrument. 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 1�2A Place Notary Seal Above Signa ut �__,re of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s):_ ❑ Partner— ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s) ❑ Partner— ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 0 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 State of California County of _ Los Angeles On September 24th, 2008 ACKNOWLEDGMENT before me, Lillian Valdivieso, Notary Public (insert name and title of the officer) personally appeared Daniel C Perry 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 m e that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the pers on(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. 360 dowryAn" — County lot Mp�Nr County AAyConm6pYMFreZ9,TOlY Signature(Seal) POWER OF ATTORNEY Know All Men By These Presents: That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its principal office in Kansas City, Missouri (hereinafter referred to as the "Company') does hereby appoint Raymond E. Gail and William J. Shupper of Rancho Cucamonga, CA (EACH) its true and lawful Attorney(s)4n-Fact, to make, execute, seal, and deliver from the date of issuance of this power for and on its behalf as surety, and as its act and deed: Any and all bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee the payment or collection of any promissory note, check, draft or letter of credit. This authority does not permit the same obligation to be split into two or more bonds in order to bring each such bond within the dollar limit of authority as set forth herein. The Company may revoke this appointment at any time. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said Company as fully and amply to all intents and purposes, as if the same had been duly executed and acknowledged by its regularly elected officers at its principal office in Kansas City, Missouri. This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by the undersigned Secretary as being in full force and effect: "VOTED, That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary, or the Secretary shall have the power and authority to appoint agents and attorneys -in -fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings, obligatory in the nature thereof, and any such officers of the Company may appoint agents for acceptance of process." This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution adopted by the unanimous consent of the Board of Directors of the Company on March 3, 2003: VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to the resolution adopted by the Board of Directors on March 3, 2003, and any such power so executed, sealed and certified with respect to any bond or undertaking to which it is attached, shall continue to be valid and binding upon the Company. OOML0013 00 03 03 Page 1 of 2 Printed in U.S.A. CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 September 9, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department Mark Harmon, Director, 949-644-3055 mharmon@city.newport-beach.ca.us SUBJECT: Professional Service Agreement With United Storm Water, Inc. For Storm Drain & V ditch Cleaning Services — �— ZLA ISSUES: Should the City execute a Professional Services Agreement with United Storm Water, Inc. of City of Industry, CA for Storm Drain & V -ditch Cleaning services? RECOMMENDATION: 1. Approve the agreement with United Storm Water, Inc. for Storm Drain & V - ditch Cleaning services on a once -yearly basis. 2. Approve a budget amendment in the amount of $17,334.70 from the General Fund Unappropriated Reserves, to fund the increase in cost over the expired contract. DISCUSSION: Currently the City has a contract with Justin's Jetting for $135,000.00 per year to clean 3,208 catch basins, 16,479 feet of v -ditches, and 28 storm drain structures on a yearly basis. This greatly reduces the amount of dirt, debris, and litter that would eventually impact water quality in the harbor and bay. In addition, this permits the storm drain system to divert water from rain and run-off out of the streets in order to prevent flooding. The contract with Justin's Jetting expired on June 30th. On July 30th, a Request for Proposal was mailed to a list of contractors on file with the General Services Department. A mandatory pre -proposal meeting was held on August 66' and attended by seven vendors based throughout Los Angeles and Orange counties. • Agreeent with United Storm Water for Storm Drain & V -ditch Cleaning Services September 9, 2008 Page 2 Three vendors submitted proposals by the August 20� deadline. A summary of the proposed prices is attached, with the lowest proposed price furnished by United Storm Water, Inc. at an annual cost of $152,334.00. Therefore, an agreement with United Storm Water, Inc. is submitted for Council approval. The term of the agreement is for four (4) years and shall be extended for two (2) additional one (1) year terms upon agreement of both parties. This agreement includes an annual rate adjustment based in proportion to changes in the Consumer Price Index to a maximum of 4.0% after each 12 month period. With the rate adjustment taken into consideration, United Storm Water, Inc. represents the best value for the City's storm drain & V -ditch cleaning service needs. FUNDING: The proposed contract is $17,334.70 more per year than the current contract that the City has With Justin's Jetting for $135,000. Consequently, staff is requesting a budget amendment in the amount of $17,334.70 from the General Fund Unappropriated Reserves into Account 3140-8088 (Operations Support — Contract Services) to fund the difference over the remainder the fiscal year (October 1, 2008 through June 30, 2009). ENVIRONMENTAL REVIEW: This action requires no environmental review, as it is not a project pursuant to CEQA. LEGAL REVIEW: The City Attorney's Office has reviewed this report and the attached agreement. Prepared b Ma rice Turner Administrative Analyst Submitted Mark Hannon General Services Director Attachments: (1) Summary of Storm Drain & V -ditch Cleaning Proposals (2) Professional Services Agreement with United Storm Water for Storm Drain & V ditch Cleaning Services Agreement with United Storm Water for Storm Drain & Vditch Cleaning Services September 9, 2008 Page 3 ATTACHMENT Summary of Storm Drain & V ditch Cleaning Proposals • Agreeont with United Storm Water for Storm Drain & V -ditch Cleaning Services September 9, 2008 Page 4 ATTACHMENT 2 Professional Services Agreement with United Storm Water for Storm Drain & V ditch Cleaning Services CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this 9th day of September of 2008, by and between the City of Newport Beach, a Municipal Corporation and Charter City ("City"), and, United Storm Water a Corporation located at 14000 E. Valley Blvd, City of Industry, CA ("Contractor"), is made with reference to the following Recitals: RECITALS WHEREAS, the City desires to obtain contract services for the cleaning of 28 storm drain structures, 3,208 catch basins and 16,479 linear feet of v -ditches. WHEREAS, on July 30, 2008 a Request for Proposals (RFP) requesting proposals for the cleaning of storm drain structures, catch basins and v -ditches was mailed to firms. WHEREAS, ("Contractor") submitted the lowest bid among the firms which responded to the RFP. WHEREAS, the Contractor desires to enter into an Agreement to provide services to the City and acknowledges that the City has relied upon its representations and commits to faithfully perform the services required by this Agreement and in accordance with the terms and conditions of this Agreement. WHEREAS, the Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications relative to the type, common nature and frequency of work to be performed, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement NOW, THEREFORE, the Parties agree as follows: 1. TERM Unless earlier terminated in accordance with Section 20 of this Agreement, the Term of this Agreement shall be for a period of four (4) years. The termshall commence on October 1, 2008, after City Council approval of this Agreement, and upon receipt and approval of all required bonds and insurance. The term of this Agreement shall automatically be extended for two (2) additional one (1) year terms (automatic extensions) with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. CONTRACTOR DUTIES Contractor shall perform the services specifically described in, and in strict compliance with the Scope of Work ("Contract Services") as described in the RFP and the Contractor's • proposal. The RFP and Contractor's Proposal are attached hereto as Exhibit A and incorporated by this reference. The Contract Services shall be performed at least as fi-equently as specified in the RFP and Contractor's proposal. City shall have the right to alter frequency of maintenance as necessary to ensure highest industry standards of maintenance. 3. WORKMANSHIP. SUPERVISION AND EQUIPMENT A. All work shall be performed in accordance to the highest industry standards of maintenance such that storm drains, catch basins and v -ditches are clear of debris and plant material. B. The Contractor shall provide a work force sufficient to perform the Contract Services and all members of the work force shall be legally documented. C. All Contract Services shall be performed by competent and experienced employees. Contractor shall be responsible for compliance with all local, state, and federal laws and regulations. Contractor shall employ or retain, at its sole cost and expense, all professional and technical personnel necessary to properly perform Contract Services. D. The work force shall include a thoroughly skilled, experienced, and competent supervisor who shall be responsible for adherence to the specifications by directly overseeing the contract operations. All supervisory personnel must be able to communicate effectively in English (both orally and in writing). Any order given to supervisory personnel shall be deemed delivered to the Contractor. The supervisor assigned must be identified by name to ensure coordination and continuity. E. All Contractor personnel working at the outlined areas shall be neat in appearance and in uniforms as approved by the Operations Support Superintendent when performing Contract Services. All Contractor personnel shall wear identification badges or patches. Those contract employees working in or adjacent to traffic zones shall wear orange vests. F. All work shall be performed in accordance with the highest maintenance standards. G. All vehicles and equipment used in conjunction with the work shall be in good working order and have appropriate safety guards. All vehicles shall bear the identification of the Contractor and clearly post "Serving the City of Newport Beach." H. Contractor shall provide a Manager to coordinate work with the City Administrator and ensure satisfactory performance of Contract Services. The manager shall coordinate work crews on a daily basis to ensure compliance with the terms of this Agreement. 4. COMPENSATION TO CONTRACTOR FA i 0 City shall pay Contractor the sum of $152,334.70 a year for all work and services to be performed under this Agreement on an annual basis as provided herein and in Exhibit A ("Contract Amount"). City shall pay Contractor the unit prices set forth in Exhibit B, which is attached hereto and incorporated herein by this reference, for all work and services to be performed under this Agreement that are in addition to the annual services and which are approved by the City in writing prior to the performance of the work. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. A. Contractor shall submit monthly invoices to City describing the work performed the preceding month. Contractor's bills shall include the total number of catch basins, linear feet of V -ditches cleaned, and the total number of storm drain structures, the location of all catch basins, V -ditches, and storm drains cleaned, the percentage of the total annual work completed, the date the services were performed, the location and number of hours spent on all work billed on an unit or hourly basis. For work to be performed on an annual basis, the City shall pay Contractor based on the percentage of the total work completed. For unit priced work approved by the City in writing that is in addition to the annual work, the City shall pay Contractor based on the Unit Prices contained in Exhibit B. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. B. Contractor shall not receive any compensation for unit priced work or other work performed without the prior written authorization of City. Compensation for any authorized unit priced work shall be paid in accordance with the rates set forth in Exhibit B. C. Upon the second anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the Contract Amount to be paid by the City as set forth above and in Exhibit A and the unit prices set forth in Exhibit B, shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 4.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original amounts by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2008, the index to be used for the numerator is the index for the month of March 2008, and the index to be used for the denominator is March 2007. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items), for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables including in such new index. In no event, however, shall the amount payable under this Agreement be reduced below the Contract Amount in effect immediately preceding such 3 adjustment. No adjustment shall be made on the first anniversary of the Commencement Date. The maximum increase to the Contract Amount, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 4.0% of the Contract Amount in effect immediately preceding such adjustment. 5. 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 Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 6. EXAMINATION OF -WORK SITES City makes no representation regarding the order or condition of any area or location for which Contractor is to provide services. City has also made no representation that the site or location of work will be free from defects, apparent or hidden, at the commencement of, or at any time during the term of the Agreement. 7. HOLD HARMLESS To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 8. INSURANCE 4 • 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates oflnsurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California; however, in no event shall the Employer's Liability Insurance be less than one million dollars ($1,000,000) per occurrence. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (3 0) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. 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 two million dollars ($2,000,000) combined single limit for each occurrence. E.Endorsements. Each general liability, employer's liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. • 0 ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insureds as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. A. The insurance.ptovided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 9. PROHIBITION AGAINST TRANSFERS OR ASSIGNMENT A. Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement without the prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor acknowledges that these provisions relative to assignments are commercially reasonable and that Contractor does possess special skills, abilities, and personnel uniquely suited to the performance of Contract Services and any assignment of this Agreement to a third party, in whole or in part, could jeopardize the satisfactory performance of Contract Services. Contractor may not employ any subcontractors unless specifically authorized by City. B. The sale, assignment, transfer, or other disposition of any of the issued and outstanding capital stock of Contractor, of the interest of any general partner or joint venture which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. 10. RECORDS/REPORTS A. All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. R B. No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. C. Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. D. Contractor shall complete a monthly maintenance report indicating work performed and submit this completed report to the City Administrator within (S) days after the end of each month. A phone log will be submitted monthly of all calls from the City of Newport Beach General Services Department and the City of Newport Beach Police Department to the Contractor, whether or not those calls require a request for service and a description of the action taken from the City call. E. Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete an&iiCcurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 11. ADMINISTRATION A. This Agreement will be administered by the General Services Department. The General Services Director or his/her designees shall be considered the City's Administrator and shall have the authority to act for the City under this Agreement. The Administrator or his/her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. B. City shall furnish to Contractor maps, ordinances, data, and other existing information as may be requested by Contractor necessary for Contractor to complete the work contemplated by this Agreement. City also agrees to provide all such materials in a timely manner. 12. INCREASE OR DECREASE IN SCOPE OF WORK A. Contractor shall perform additional services as requested by the Administrator. Additional services, may be billed in accordance with the unit cost proposed by the Contractor Exhibit B. B. Contractor shall perform additional/emergency services as requested by the Administrator. Contractor must obtain written authorization from the City Administrator prior to the performance of any additional/emergency services. Additional services, may be billed in accordance with the per unit cost proposed by the Contractor in Exhibit B. 7 C. City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of services, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. hi the event the location is withdrawn for a period of less than a full four (4) year term, Contractor's compensation shall be reduced on a prorated basis. 13. DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. ;;. 14. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for expenses unless authorized in writing by City Administrator. 15. LABOR A. Contractor shall conform with all applicable provisions of State and Federal law including, applicable provisions of California Labor Code, and the Federal Fair Labor Standards Act. B. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 16. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not, and will not, discriminate against any subcontractor, Contractor, employee or applicant for employment based on race, religion, color, sex, handicap, national origin, or other basis that violates the federal or state constitution or federal or state law. Contractor's obligation not to discriminate shall apply, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 17. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 18. CONFLICTS OF INTEREST A. 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 financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above. Contractor will comply with the Act and relevant City Resolutions. B. 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 termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 19. NOTICES All notice, d2iiiands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: General Services Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658-8915 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: 20. TERMINATION/DEFAULT A. hi the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. if such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. B. This agreement may be terminated without cause by City upon thirty (30) days written notice. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is eared and unpaid prior to the effective date of termination. The Contractor may only terminate the Agreement in the event of nonpayment by the City. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) days written notice thereof and the City shall have fifteen (15) working days to cure the alleged breach. C. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the City Administrator, the level of maintenance falls below appropriate cleaning standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the City Administrator determines that contract services are performed as well and as frequently as required by this Agreement. 21. COMPLIANCE Contractor represents that it is familiar, and shall comply, with all state, federal, or local laws, rules, ordinance, statutes or regulations applicable to the performance of Contract Services. 22. WAIVER A waiver by City 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. 23. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties concerning the services to be provided under this Agreement. All preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 24. AMENDMENTS 10 0 0 This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 25. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26. 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. 27. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year fust written above. ATTEST: LaVonne Harkless, City Clerk APPROVED AS TO FORM: Aaron Harp, Assistant City Attorney 12 CITY OF NEWPORT BEACH A Municipal Corporation By: Ed Selich, Mayor Contractor By: Title: L Exhibit A awpottwi? - - Bsola&v—d 6eh AWeAwMWO trite 0 STRDC�138 AFAWACW odswim (9,7" at.amAbm&* s �aO��Q•ao . wctkbo(KoMuo= MHOs i1,�tZZ T° lWdAMOWC. s ti 3f•70 13 0 0 Exhibit B RSgaW for Proposal Storm Drytin dt V -ditch Clawing A. Mite C ontattor agrees diad for regaeaad andlor mpired changes m the scope of we*, including additions and deletions on work not performed, the Contact Stan shall be djustad in acootdeace with the IbIlowing unit prices, where the CtW elects to use this madwd in dotmmining coats. B Cw&w w is advised that the unit pica will atter into the ddaathuMon of rho contmet award. Umeeam>abde pdm mayiesolt in rejection of the entire bid pnposai. Unit Piece listed below rem to aU item unrolled and &a Coaatuotlan Doom=" and indala all cow ommeotecd wilt ouch Acma; molocims but not limited to, maiaia4s, labor, ovarltead, and profit for dw contractor. C. Tho unit pem gnetod by tate Coni maw hall be those milt prions that will be cid or a edited for labor and materials to bepmvkkd regardless of the tDtal number units and/or amount oflabor required for added ordelotedgem ofwo& D. AU worst ahall be perbotmed in socordan o with spedfications descnbai in ftM. i 14 Cly of Newport BeaC10 NO. BA- 09BA-009 BUDGET AMENDMENT 2008-09 AMOUNT: $17,334.70 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance X Increase Expenditure Appropriations AND AX Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations from General Fund fund balance for the additional costs associated with the new contract for storm drain and V -ditch cleaning services. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit 010 3605 General Fund - Fund Balance $17,334.70 REVENUE ESTIMATES (3601) Fund/Division Account Description EXPENDITURE APPROPRIATIONS (3603) Description Division Number 3140 General Services - Operations Support Account Number 8088 Contract Services $17,334.70 Division Number Account Number Division Number Account Number Division Number Account Number Automatic System Entry. Signed: '�// vy�.� yr. -r2 —Ga Fin ncial Approval: Administra ' e Services Director Date Signed: p A ministrative Ap oval: 61y Manager date Signed: City Council Approval: City Clerk Date