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HomeMy WebLinkAboutItem G - Annual Contract for Sand Berm Construction+� SEAL AGENDA STAFF REPORT DATE: July 10, 2017 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Steve Myrter, P.E., Director of Public Works SUBJECT: ANNUAL CONTRACT FOR SAND BERM CONSTRUCTION AND REMOVAL — TWO YEAR EXTENSION SUMMARY OF REQUEST: That the City Council adopt Resolution No. 6749: 1. Extending the annual contract agreement with Post Earthworks Constructors, Inc. for an additional term of two (2) years in the amount of $275,366; and 2. Authorizing the City Manager to execute Amendment No. 4 extending the contract agreement with Post Earthworks Constructors, Inc. BACKGROUND AND ANALYSIS: Historically, the residents along the beach between the Anaheim Jetties and the pier are subject to wave inundation during storms. The threat of washouts or flooding is lessened by the annual construction of a sand berm. The "berm" is routinely removed prior to the end of April except in cases where possible inclement weather and wave events would make it prudent to leave it in place for longer periods. On September 22, 2003, the City Council received and filed a report prepared by Moffat & Nichol Engineers regarding the construction and removal of the annual winter sand berm. The work consists of constructing a sand berm approximately 22 feet above mean lower low water (MLLW) datum, almost 40 feet wide and the length of east beach from the pier to the Navy Base. The report also recommends performing "back- passing" operations every other year which consist of moving sand from West Beach to East Beach. Agenda Item G At the September 10, 2012 City Council meeting, the City Council awarded a three -year construction contract to Post Earthworks Constructors, Inc. in the amount of $370,366. The bids for this project in 2012 were as follows: RANK CONTRACTOR BID AMOUNT 1 Post Earthworks Constructors, Inc. $370,366 2 '.. GM Sager Construction, Inc. $490,000 3 GRFCO Inc. $550,000 4 Excel Paving $714,425 The breakdown in the yearly prices paid to Post Earthworks Constructors, Inc. for the three -year term under the original contract was: Year 1 - $ 95,000 — non backpass (FY 12/13) Year 2 - $180,366 - backpass (FY13/14) Year 3 - $ 95.000 — non backpass (FY14/15) Total - $370,366 The contract contained a clause that allows the City to exercise up to two (2) additional two (2) year extensions, should the work done by the contractor be deemed satisfactory by the City. Each two -year extension would include a backpass year and a non backpass year based on the prices listed above, as follows: Year 1 - $180,366 — backpass Year 2 - $ 95.000 — non backpass Total - $275,366 On September 14, 2015, City Council approved a two year extension (Amendment No. 1) to the contract due to the exemplary work performed during the term of the original contract as well as the very competitive cost that an extension to the existing contract would be. Those two years were for Fiscal Years 15/16 and 16/17. On December 14, 2015, City Council approved Amendment No. 2 to Post Earthworks Constructors, Inc. for additional berm construction work, to build the berm taller and wider than typical winters in preparation for an El Nino winter season. Furthermore, on April 12, 2016, City Council approved Amendment No. 3 to Post Earthworks Constructors, Inc. for additional berm construction work, to take down the additional sand on the berm from the El Nino winter storm preparation. At this time, staff recommends exercising the clause in the original contract to award the second and final two -year extension to Post Earthworks Constructors, Inc. These years would cover Fiscal Years 17/18 (backpass) and 18/19 (non- backpass). Should this project be re -bid at this time and not extended, staff believes that the costs to perform this work would be significantly higher than currently costs. Page 2 ENVIRONMENTAL IMPACT: This project complies with all requirements of the California Environmental Quality Act (CEQA) and is categorically exempt under section 15301 class 1 (d). LEGAL ANALYSIS: The City Attorney has reviewed the amendment No. 4 and approved as to form. FINANCIAL IMPACT: Sufficient funds have been allocated in the Fiscal Year 17/18 budget under tidelands contract professional services for this project and other coastal projects. Future budgets will reflect the budgetary needs of this and other coastal projects under the tidelands contract professional services. RECOMMENDATION: That the City Council adopt Resolution No. 6749: 1. Extending the annual contract agreement with Post Earthworks Constructors, Inc. for an additional term of two (2) years in the amount of $275,366; and 2. Authorizing the City Manager to execute Amendment No. 4 extending the contract agreement with Post Earthworks Constructors, Inc. SUBMITTED BY: NOTED AND APPROVED: i teve fy r, P.E. 11 . Ingram, City f ager Director of Public Works Prepared by: David Spitz, P.E., Associate Engineer Attachments: A. Resolution No. 6749 B. Proposed Amendment No. 4 C. Original Contract D. Amendment No. 1 E. Amendment No. 2 F. Amendment No. 3 Page 3 "Attachment A" RESOLUTION NUMBER 6749 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING AMENDMENT NO. 4 FOR A TWO -YEAR EXTENSION OF THE AGREEMENT FOR SAND BERM CONSTRUCTION AND REMOVAL WITH POST EARTHWORKS CONSTRUCTORS, INC. WHEREAS, the City of Seal Beach and Post Earthworks Contractors, Inc., ( "Contractor') are parties to that certain agreement dated September 10, 2012 ( "Agreement'), and entitled Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement'); and WHEREAS, the Agreement provides for an initial contract tens of 36 months and payment up to the total amount of $370,366 for services performed by Contractor in accordance with the Agreement; and WHEREAS, the Agreement further provides that the City may elect to exercise an extension to renew the Agreement for two additional two -year terms, contingent upon satisfactory performance of Contractor; and WHEREAS, on September 14, 2015 the City elected to extend the agreement for an additional two -year term, for the total amount of $275,366: and WHEREAS, the City wishes to extend the Agreement for one additional two -year term, for the total amount of $275,366, and to authorize the City Manager to execute the contract extension; NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY FIND AND RESOLVE: Section 1. The City of Seal Beach hereby extends the Agreement dated September 10, 2012 for an additional two years from September 14, 2017 through and including September 14, 2019, as set forth in Amendment No. 4 for a Two -Year Extension of the Agreement for Sand Berm Construction and Removal with Post Earthworks Contractors, Inc., ( "Fourth Amendment') for the total amount of $275,366, attached hereto as Exhibit "W and incorporated herein by this reference as though set forth in full. Section 2. The City Council hereby authorizes the City Manager to execute the Fourth Amendment. Section 3. The City Clerk shall certify to the passage and adoption of this resolution. PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 1 & day of July , 2017 by the following vote: AYES: Council Members: Resolution Number 6749 NOES: Council ABSENT: Council Members: ABSTAIN: Council Members: ATTEST: Sandra Massa - Lavitt, Mayor Robin L Roberts, City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Robin L. Roberts, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6749 on file in the office of the City Clerk, passed, approved, and adopted by the Seal Beach City Council at a regular meeting held on the 10thday of July , 2017. Robin L. Roberts, City Clerk Exhibit A — Amendment No. 4 for a Two -Year Extension of the Agreement for Sand Berm Construction and Removal with Post Earthworks Contractors, Inc. Attachment B" AMENDMENT NO. 4 TO THAT CERTAIN AGREEMENT DATED SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 4 ( "Fourth Amendment'), is made and entered into July 10, 2017, by and between the City of Seal Beach, a California charter city ( "City") and Post Earthworks Constructors, Inc., a California Corporation ( "Contractor"), and is an amendment to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Bern Construction and Removal ( "Agreement"), Amendment No. 1 dated September 14, 2015 ("First Amendment "), Amendment No. 2 dated December 14, 2015 ( "Second Amendment', and Amendment No. 3 dated April 11, 2016 ( "Third Amendment "), to said Agreement. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand berm construction and removal project ( "Project "). B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two-year terms, contingent upon satisfactory performance of Contractor. C. The First Amendment provides for an additional two -year term to and including September 14, 2017, for an additional amount of $275,366. D. The Second Amendment provides for an additional scope of work during Year One of the additional two -year term, and specifies the compensation to be paid to Contractor for that additional work. E, The Third Amendment provides for an additional scope of work during Year One of the first two-year extension and payment of $45,000 to Contractor for that additional work. F. The City has determined the need for supplemental work to remove excess sand from the beach behind certain homes along the City beach during calendar year 2017. G. Pursuant to the authority provided by its City Charter and Chapter 3.20 of the Seal Beach Municipal Code, the City solicited bids from vendors experienced in the work needed to carry out the excess sand removal work. H. City received bids from three vendors for the excess sand removal work, and City determined that Contractor submitted the lowest acceptable quotation. I. City and Contractor wish to amend the Agreement a fourth time to (i) provide for an additional two -year term to and including September 14, 2019; (ii) authorize additional supplemental work during calendar year 2017 to include the excess sand removal work covered by Contractor's 2017 bid; and (iii) specify the compensation to be paid to Contractor for the supplemental work. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1, Contractor's Services, of the Agreement is amended to add Subsection 1.1.3 to read as follows: 1.1.3 Excess Sand Removal Work. Subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all excess sand removal during calendar year 2017 ( "Excess Sand Removal Work's identified in Contractor's April 26, 2017 proposal, attached hereto as Exhibit J and incorporated herein by this reference as though set forth in full. In the event of any material discrepancy or conflict between Exhibit J, on the one hand, and any provision of this Agreement or the Contract Documents, on the other hand, the provisions of this Agreement shall prevail." Section 2. Section 2 of the Agreement is amended to read as follows: "2. Effective Date. This Agreement, originally effective as of September 10, 2012 (the "Effective Date "), for 36 months, and extended pursuant to the First Amendment for one additional two -year term to and including September 14, 2017, shall remain in full force and effect for an additional two years from September 14, 2017 through and including September 14, 2019, unless sooner terminated as provided in the Agreement." Section 3. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.4 to read as follows: "3.4 Payment for Excess Sand Removal Work. For performing and completing the Excess Sand Removal Work in accordance with Subsection 1.1.3 and the Contract Documents, City shall pay Contractor, in full compensation therefor, the total amount of $19,950 (nineteen thousand nine hundred fifty dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents. Said sum shall constitute payment in full for all Excess Sand Removal Work performed pursuant to this Subsection 3.4, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Excess Sand Removal Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Excess Sand Removal Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specked in the Contract Documents. The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work greater than this amount requires prior City Council authorization." Section 4. Except as expressly modified or supplemented by this Fourth Amendment, all other provisions of the Agreement shall remain unaltered and in full force and effect. In the event of a conflict between the provisions of this Fourth Amendment and the provisions of the Agreement, First Amendment, Second Amendment or Third Amendment, the provisions of this Fourth Amendment shall control. IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be executed and attested by their proper officers thereunto. CITY OF SEAL BEACH POST EARTHWORKS CONSTRUCTORS, INC. Jill R. Ingram, City Manager Chris Po t, President [type/print name and title] (Please note, two signatures required for mporelions under Corp. Code §313, unless corporate documents aufhodze only one person to sign this Agreement on behatl orthe corporation.) ATTEST: Robin Roberts, Acting City Clerk APPROVED AS TO FORM: Craig A. Steele, City Attorney Attachment "C" PUBLIC WORKS AGREEMENT FOR 3 -YEAR ANNUAL SAND BERM CONSTRUCTION AND REMOVAL between 10 City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 0 Post Earthworks Constructors, Inc. 2967 E. Coronado Street Anaheim, CA 92806 (714) 632 -5290 (714) 632 -9767 - FAX THIS AGREEMENT is made as of September 10. 2012, by and between the City of Seat Beach, a California charter city ( "City"), and Post Earthworks Constructors. Inc.. a General Contractor ( "Contractor "). RECITALS A. WHEREAS, the City Council has approved the plans and specifications for the 3- Year Annual Sand Berm Construction and Removal ( "Project") with respect to design criteria; and B. WHEREAS, Contractor has submitted a bid to City for the Project dated August 7, 2012 in the amount of $370,366 ( "Accepted Proposal" hereinafter). The Accepted Proposal is attached hereto as Exhibit G and contains, among other things, provisions defining the Project scope. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: AGREEMENT 1. Contractor's Services, 1.1 Scope and Level of Services. For and in consideration of the mutual promises set forth herein, and subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all work ( "Work ") required by this Agreement and the documents listed in Subsection 1.2 for the Project. 1.2 Contract Documents. The "Contract Documents" that comprise the agreement between the City and the Contractor are the: Notice Inviting Bids, Instructions to Bidders, Accepted Proposal, Non - Collusion Affidavit, Bid Schedule(s), List of Subcontractors, Contractor's Industrial Safety Record, Contractor's Qualification Statement, Bid Security Forms for Check or Bond, Specifications, General and Special Provisions and documents referenced therein, all addenda as prepared prior to the date of bid opening setting forth any modifications or interpretations of any of said documents, this Agreement, Exhibits attached to this Agreement, including but not limited to the Performance Bond (Exhibit A), Payment Bond (Exhibit B), Workers' Compensation Insurance Certificate (Exhibit C), Insurance Endorsements (Exhibit D), Acknowledgment of Penal and Civil Penalties Concerning Contractor Licensing Laws (Exhibit E), Labor Law Requirements (Exhibit F), Accepted Proposal (Exhibit G) and any and all supplemental agreements executed amending or extending the Work contemplated and that may be required to complete the Work in a substantial and acceptable manner. These Contract Documents are hereby incorporated into this Agreement. 1.3 The Work shall be performed in accordance with the Plans, Specifications and other Contract Documents. Contractor shall furnish at its own expense all labor, materials, equipment and services necessary therefor, except such labor, materials, equipment and services as are specified in the Contract Documents to be furnished by City. 1.4 In the event of any material discrepancy between the express provisions of this Agreement and the provisions of the other Contract Documents, the provisions of this Agreement shall prevail. 2. Effective Date. This Agreement is effective as of September 10, 2012 (the `Effective Date "), and shall remain in full force and effect until Contractor has rendered the services required by this Agreement. 3. Payment. For performing and completing the Work in accordance with the Contract Documents, City shall pay Contractor, in full compensation therefor, the amount of $370,366, subject to any additions and deletions pursuant to the terms of the Contract Documents. Said sum shall constitute payment in full for all work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. 4. Contractor's Personnel. 4.1 All Work shall be performed by Contractor or under Contractor's direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by state and local law and by the Notice Inviting Bids/Instructions to Bidders to perform such Services, including, without limitation, a City of Seal Beach business license as required by the Seal Beach Municipal Code. 4.2 Contractor shall be responsible for payment of all employees' wages and benefits, and shall comply with all requirements pertaining to employer's liability, workers' compensation, unemployment insurance, and Social Security. Contractor shall fully comply with the workers' compensation law regarding Contractor and Contractor's employees. 4.3 Contractor shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of city officials, from any and all liabilities, damages, claims, costs and expenses of any nature to the extent arising from Contractor's alleged violations of personnel practices. 4.4 Contractor is, and shall at all limes remain m to City, a wholly independent contractor. Contractor shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor's employees, except as set forth in this Agreement. Contractor shall not, at any time, or in any manner, represent that it or any of its officers, agents, or employees are in any manner employees of City. Contractor shall pay all required taxes on amounts paid to Contractor under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the work performed pursuant to this Agreement. 4.5 City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor's failure to promptly pay to City any reimbursement or indemnification arising under this Section 4. Indemnification. 5.1 Contractor's Duty. Contractor shall defend, indemnify, and hold the City, its elected officials, officers, employees, volunteers, agents, and those City agents serving as independent contractors in the role of City officials ( collectively "Indemnitees ") free and harmless 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, bid protests, stop notices, 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 "), in any manner arising out of or incident to the performance of the Agreement, including without limitation, the payment of all consequential damages and attorneys' fees and other related costs and expenses. Further, Contractor shall appoint competent defense counsel, at Contractor's own cost, expense and risk, to defend any and all such suits, actions or other legal proceedings of every kind arising out of or incident to the performance of the Agreement that may be brought or instituted against Indemnitees. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or the other Indemnitees in any such suit, action, or other legal proceeding arising out of or incident to the performance of the Agreement. Contractor shall reimburse the City and the other Indemnitees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor or Indemnitees. This indemnity shall apply to all Claims and liability regardless of whether any insurance policies are applicable. 5.2 Bid Protests. In addition to its obligations pursuant to Section 5.1, Contractor shall reimburse the City for all attorneys' fees and costs incurred by City in connection with, arising out of or incident to any bid protest. 5.3 City's Sole Negligence. Nothing in Section 5.1 shall be construed to require Contractor to indemnify Indemnitees for that portion of any Claim to the extent arising from the sole negligence or willful misconduct of the Indemnitees. 5.4 Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possess against Contractor because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. 5.5 Waiver of Right of Subrogation. Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all claims, losses, and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnttor. 5.6 Survival. The provisions of this Section 5 shall survive the termination of the Agreement and are in addition to any other rights or remedies that Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against a Contractor shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. 6. Insurance 6.1 Liability Insuran ce. Contractor shall procure and maintain in full force and effect for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by Contractor, and its agents, representatives, employees and subcontractors. The policy limits set forth below do not act as a limitation upon the amount of indemnification to be provided by Contractor. Contractor shall complete and execute the following documents attached as Exhibits hereto and incorporated herein by this reference: General Liability. Liability. 6.1.1 Exhibit D -l: Additional Insured Endorsement - Commercial 6.1.2 Exhibit D -2: Additional Insured Endorsement - Automobile 6.1.3 Exhibit D -3: Additional Insured Endorsement. 6.2 Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as: 6.2.1 Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 6.2.2 Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 6.2.3 Insurance Services Office form number CG 20 10 11 85 (Ed. 11/85) covering Additional Insured —Owners, Lessees or Contactors (Form B). 6.2.4 Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 6.2.5 Professional Liability insurance. Unless the City waives in the requirement for professional liability insurance, Contractor shall provide to City the standard form issued by the carrier. 6.3 Minimum Limits of Insurance. Contractor shall maintain limits no less than: 6.3.1 General Liability: $2,000,000 per occurrence and in the aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit. 6.3.2 Automobile Liability: $2,000,000 per occurrence for bodily injury and property damage. 6.3.3 Employer's Liability: $1,000,000 per occurrence and in the aggregate for bodily injury or disease and Workers' Compensation Insurance in the amount required by law 6.4 Deductibles and Self- Insured Retentions. Contractor shall infomt City of any deductibles or self - insured retentions except with respect to any professional liability insurance. 6.5 Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 6.5.1 City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City officials, are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials which are not also limitations applicable to the named insured. 6.5.2 For any claims related to this Agreement, Contractor's insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City officials. Any insurance or self - insurance maintained by City, their officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials shall be excess of Contractor's insurance and shall not contribute with it. 6.5.3 Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 6.5.4 Each insurance policy required by this Section 6 shall be endorsed to state that coverage shall not be canceled or materially modified except after 30 days prior written notice by first class mail has been given to City. 6.5.5 Each insurance policy, except for any professional liability policy, required by this Section 6 shall expressly waive the insurer's right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city or agency officials. 6.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:Vlll unless waived in writing by City's Risk Manager. 6.7 Verification of Coverage. All insurance coverage's shall be confirmed by execution of endorsements on forms approved by the City. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by City before services commence. As an alternative to City forms, Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. 7. Liquidated Damages. Should the Contractor fail to complete the project, or any part thereof, in the time agreed upon in the Contract, the Contractor shall reimburse the City for the additional expense and damage for each calendar day that the Contract remains uncompleted after the Contract completion date. It is agreed that the amount of such additional expense and damage incurred by reason of failure to complete the Contract is the per diem rate of $750-per calendar day. Such amount is hereby agreed upon as liquidated damages for the loss to the City resulting from the failure of the Contractor to complete the project within the allotted time and to the value of the operation of the works dependent thereon. It is expressly understood and agreed that this amount is a reasonable amount and is established in lieu of damages that are incapable of calculation at the inception hereof; and this amount is not to be considered in the nature of a penalty. The City shall have the right to deduct such damages from any amount due, or that may become due to the Contractor, or the amount of such damages shall be due and collectible from the Contractor or the Contractor's Surety. Progress payments made after the scheduled completion date shall not constitute a waiver of liquidated damages. 8. Suspension. City may, in writing, order Contractor to suspend all or any part of the Contractor's Services for the convenience of City or for work stoppages beyond the control of City or Contractor. A suspension of the Services does not void this Agreement. 9. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Contractor's and City's regular business hours or by facsimile before or during Contractor's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this Section. All notices shall be addressed as follows: If to City: City Clerk City of Seal Beach 211 -8th Street Seal Beach, California 90740 Telephone: (562) 431 -2527 Fax: (562) 493 -9857 With a copy to: Public Works Director City of Seal Beach 211 -8th Street Seal Beach, California 90740 If to Contractor: Post Earthworks Constructors, Inc. 2967 E. Coronado Street Anaheim, CA 92806 Telephone: 714 - 632 -5290 Fax: 714- 632 -7967 Attn: Chris Post, President 10. Non - Assignability; Subcontracting. Contractor shall not assign, transfer, or subcontract any interest in this Agreement or the performance of any of Contractor's obligations hereunder. Any attempt by Contractor to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be null, void and of no effect. 11. Compliance with Laws. Contractor shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Contractor performs the Services. 12. Non - Waiver of Terms. Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. 13. Attorneys' Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including all attorneys fees incurred in connection therewith. 14. Construction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 15. Entire Agreement. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Contractor and City. This Agreement supersedes all prior oral or written negotiations, representations, or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. 16. Severability. The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF SEAL BEACH By: Q (M. Ingram, City er Attest: By: Lit da Devine, Cify Clerk Approved as to Fort: By: uinn M. Barrow, City Attomey TIM Name: -�—"C Title: 4 DPS✓� -r t CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California Countyof (lrrc,+ac CML CODE it 1169 On 2 a 'f 2012 before me, k sTC IM,e InfM N.me YLtl TXM OI OXIn, - personally appeared C�'r f Leo 037 — Nemelella sWNq - -_. __ KRISTOPHER JOHN OLSON Commiadon 9 1961438 Notary Public - California Orange County ti Comm. Ex Ir s Nor 21, 2016+ who proved to me on the basis of satisfactory evidence to be the person whose namffW -is/are subscribed to the wiMin ins mment and acknowledged to me 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 persons) acted, executed the instrument. 1 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 Plecx lMlerySexl4EOtre $gneW,e of NalaryPUdic OPTIONAL Though the inkmonation beiaw rs not required by law, it may prove valuable m persons relying on the document and could prevent rraudulent removal and reaflachment or this room to arwfher document Description of Attached Document C Title or Type of Document: Document Date: Os 12.7[ 2�/2 _ Number of Pages L7 Signer(s) Other Than Named Above: Capacfty(ies) Claimed by Signer(s) Signer's Name:.._ ❑ Corporate Officer —Title(s): _ ❑ Individual 17 Partner — LJ Limited LJ General Iw of ihu,nu rz , I I Attomey in Fact F1 Trustee ❑ Guardian or Conservator I Other: Signer is Representing 10, Aasocmo .I „IN.1...,a- Signer's Name:. ❑ Corporate Officer — TRIe(s): -J Individual ❑ Partner — ❑ Limited -1 General II,p onn, „rt, hero ❑ Attorney in Fact El Trustee El Guardian or Conservator L1 Other : Signer Is Representing Attachment "D" AMENDMENT NO, I TO THAT CERTAIN AGREEMENT DATED; SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 1 ( "First Amendment'), to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement) between the City of Seal Beach, a California charter city ( "City") and Post Earthworks Constructors; Inc., a California Corporation ( "Contractor") is dated September 14, 2015 and is between City and Contractor. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand berm construction and removal project ( "Project's. B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two -year terms, contingent upon satisfactory performance of Contractor. C. City and Contractor wish to amend the Agreement to (i) extend its term for one additional two -year term, and (ii) specify the compensation to be paid to Contractor for the two -year extension in accordance with Contractor's August 7, 2012 proposal, as provided herein. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promise's set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 2 of the Agreement is amended to read as follows: "2. Effective Date. This Agreement, originally effective as of September 10, 2012 (the "Effective Date', for 36 months, shall remain in full force and effect for an additional two years, from September 14, 2015 through and including September 14, 2017, unless extended or sooner terminated as provided in the Agreement.' Section 2. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.1 to read as follows: "3.1 Payment for Two -Year Extension. For performing and completing Ithe Work for the additional two -year term for the time period extending from September 14, 2015 -through and including September 14, 2017, in accordance with the Contract Documents, City shall pay Contractor, in full compensation therefor, the total amount of $275,366 (two hundred seventy- five thousand three hundred sixty -six dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents, in accordance with the following breakdown: Year One Extension - $180,366.00 (backpass) Year Two Extension - $ 95.000.00 (non baclmass) Total — $275,366.00 Said sum shall constitute payment in full for all work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization." i Section 3. Except as expressly modified or supplemented by this First Amendment, all other provisions of the Agreement shall remain una@ered and in full force and effect. In the event of a conflict between the provisions of this First Amendment and the provisions of the Agreement, the provisions of this First Amendment shall control. IN WITNESS WHEREOF, the parties have caused this First Amendment to be executed and attested by their proper officers thereunto. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed and attested by their proper officers thereunto. CITY OF SEAL BEACH I g!_rat AT1_ X -�) Km L-M Tina Knapp, Acti gg City Clerk APPRMEDQTO FORM: Craig A. Steele, City Attorney I - nt CWTIS C. POST Pr-sideTt (type/prlW name and title] (Please note, taro svvtutea mqumd for mmmatrms undw Com. Code §313; unless mmemta dammems authodze mly one pers to aWn th/s Agreement; m behaCormemmwadm.) Attachment "E" AMENDMENT NO. 2 TO THAT CERTAIN AGREEMENT DATED SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 2 ( "Second Amendment "), is made and entered into December 14, 2015, by and between the City of Seal Beach, a California charter city ( "City") and Post Earthworks Constructors, Inc., a California Corporation ( "Contractor"), and is an amendment to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement ") and Amendment No. 1 dated September 14, 2015 ( "First Amendment ") to said Agreement. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand berm construction and removal project ( "Project"). B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two -year terms, contingent upon satisfactory performance of Contractor. c. Amendment No. 1 provides for an additional two -year term to and including September 14, 2017, for an additional amount of $275,366. C. City and Contractor wish to amend the Agreement a second time to (i) include an additional scope of work during Year One of the additional two -year term, and (ii) specify the compensation to be paid to Contractor for the additional work in accordance with Contractor's November 3, 2015 proposal, as provided herein. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1, Contractor's Services, of the Agreement is amended to add Subsection 1.1.1 to read as follows: 1.1.1 Additional Scope of Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all additional work during Year One of the additional two -year term ( "Additional Work ") identified in Contractor's November 3, 2015 proposal, attached hereto as Exhibit H and incorporated herein by this reference as though set forth in full. In the event of any material discrepancy or conflict between Exhibit H, on the one hand, and any provision of this Agreement or the Contract Documents, on the other hand, the provisions of this Agreement shall prevail." Section 2. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.2 to read as follows: "3.2 Payment for Additional Work. For performing and completing the Additional Work in accordance with Subsection 1.1.1 and the Contract Documents, City shall pay Contractor, in full compensation therefor, the total amount of $90,274 (ninety thousand two hundred seventy- four dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents. Said sum shall constitute payment in full for all Additional Work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization." Section 3. Except as expressly modified or supplemented by this Second Amendment, all other provisions of the Agreement shall remain unaltered and in full force and effect. In the event of a conflict between the provisions of this Second Amendment and the provisions of the Agreement or the First Amendment, the provisions of this Second Amendment shall control. IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed and attested by their proper officer's thereunto. CITY OF SEAL BEACH Jill R. Ingram, City Manager ATTEST: Robin Roberts, Acting City Clerk APPROVED AS TO FORM: Craig A. Steele, City Attorney POST EARTHWORKS CONST ,I Chris Post, President [type/print name and title] (Please note, two signatures required for corporations under Corp. Code §313, unless cmpoafe documents authorize only one peaon to sign this Agreement on behalf ofthe corporation) Attachment "F" AMENDMENT NO. 3 TO THAT CERTAIN AGREEMENT DATED SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 3 ( "Third Amendment'), is made and entered into April 12, 2016, by and between the City of Seal Beach, a California charter city ( "City") and Post Earthworks Constructors, Inc., a California Corporation ( "Contractor'), and is an amendment to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement), Amendment No. 1 dated September 14, 2015 ( "First Amendment), and Amendment No. 2 dated December 14, 2015 ( "Second Amendment) to said Agreement. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand bens construction and removal project ( "Project"). B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two-year terms, contingent upon satisfactory performance of Contractor. C. The First Amendment provides for an additional two -year term to and including September 14, 2017, for an additional amount of $275,366. D. The Second Amendment provides for (i) an additional scope of work during Year One of the additional two-year term, and (ii) specifies the compensation to be paid to Contractor for that additional work. E, City and Contactor wish to amend the Agreement a third time to (i) include an additional scope of work during Year One of the additional term, for removal of sand in excess of that covered by the existing Agreement, and (ii) specify the compensation to be paid to Contractor for the additional work in accordance with Contractors March 14, 2016 proposal, as provided herein. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1, Contractor's Services, of the Agreement is amended to add Subsection 1.1.2 to read as follows: "1.1.2 Supplemental Scope of Sand Removal Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all additional work during Year One of the additional two -year I IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed and attested by their proper officers thereunto. CITY OF •• •' (. • • 0 D Chris Post, President (type/prrnt name and title] (Please note, M signatures required for corporations under Corp. Code §313, unless corporate documents authonze only one person b sign this Agreement on beha/Iofthecorpore6on.)