HomeMy WebLinkAboutAGMT - Surfside Colony Ltd (Surfside Beach Cleaning Maintenance and Berm Construction)b!:
PROFESSIONAL SERVICES AGREEMENT FOR
SURFSIDE BEACH CLEANING, MAINTENANCE
AND BERM CONSTRUCTION
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
0
Surfside Colony, Ltd
P.O. Box 235
Surfside, CA 90743
(562) 592-2352
This Professional Services Agreement for Surfside Beach Cleaning, Maintenance and Berm
Construction ("the Agreement") is made as of September 26, 2022 (the "Effective Date"), by and
between Surfside Colony, Ltd ("Surfside Colony"), a California mutual nonprofit benefit
corporation, and the City of Seal Beach ("City"), a California charter city, (collectively, "the
Parties").
a
RECITALS
A. City and Surfside Colony previously entered into an agreement for the cleaning
and maintenance of Surfside Beach, dated February 22, 2016, which has expired; and
City and Surfside Colony desire to enter into a new agreement for professional services
for the cleaning and maintenance of Surfside Beach.
B. Pursuant to the authority provided by its City Charter and Seal Beach Municipal
Code § 3.20.025(C), City desires to retain Surfside Colony as an independent contractor
to provide cleaning and maintenance services for Surfside Beach.
C. This Agreement shall amend, supersede and replace in all respects the 2016
contract.
D. Surfside Colony represents that it is qualified and able to provide City with such
services.
E. City desires to retain Surfside Colony as an independent contractor and
Surfside Colony desires to serve City to perform those services in accordance with the
terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows.
AGREEMENT
1.0 Scope of Services
1.1. For purposes of this Agreement, "Surfside Beach" is that portion of state
tidelands under the City's jurisdiction located below the mean high tide line and that is
generally bounded by the United States Naval Weapons Station to the northwest and the
southerly City limits.
1.2. Surfside Colony shall keep Surfside Beach clean and free of trash and
debris to the same standard to which the City maintains its other beaches. Cleaning shall
be provided 3-5 times per week or more often if needed as determined by the City.
1.3. Surfside Colony shall sanitize Surfside Beach to the same standard to
which the City maintains its other beaches at least twice annually, with a beach sanitizes
approved by the City.
1.4. In order to protect Surfside Beach and nearby properties from storm
damage including flooding, Surfside Colony shall annually construct and maintain a
winter sand berm on that certain real property owned by Surfside Colony located adjacent
to Surfside Beach and described as follows: the sand area on the beach between Anderson
Street and the Seal Beach Naval Weapons Station from sundecks to the mean high tide
line. Surfside Colony shall construct and maintain the berm on its property to the same
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standard to which the City constructs sand berms for the protection of beaches and
properties, and in accordance with the City's requirements.
1.5. Surfside Colony shall perform all services under this Agreement in
accordance with the standard of care generally exercised by professionals who regularly
engage in the type of services to be provided by Surfside Colony under similar
circumstances and in a manner reasonably satisfactory to the City, and in accordance with
any and all applicable standards of care.
1..6. In performing this Agreement, Surfside Colony shall comply with all
current applicable provisions of federal, state, and local law.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall
continue for a term of five (5) years, unless terminated earlier as provided by this
Agreement.
3.0 Surfside Colony's Compensation.
3.1. City will pay Surfside Colony the following sums for the services
rendered pursuant to this Agreement.
31.1. The City will pay Surfside Colony the sum of $2,671.18 (two
thousand six hundred seventy-one dollars and eighteen cents) per month for the cleaning
and maintenance of Surfside Beach rendered pursuant to this Agreement.
3.1.2. The City will pay Surfside Colony the sum of $961.60 (nine
hundred sixty-one dollars and sixty cents) per month for the annual construction,
maintenance and removal of a winter sand berm adjacent to Surfside Beach on the
property described in Section 1.4. The sand berm shall be constructed in accordance with
the specifications, standards and requirements of the City. No payment shall be made by
the City to reimburse Surfside Colony for the annual construction, maintenance and
removal of the sand berm unless the City has inspected the berm prior to Surfside
Colony's completion of the berm construction. Surfside Colony shall be responsible for
contacting the City to request an inspection of the berm, and shall provide the City with
at least one week's prior written notice of a requested inspection. Surfside Colony and
shall make all areas of the berm accessible to enable the City to perform its inspection.
3.1.3. The amounts set forth in Subsections 3.1.1 and 3. 1.2 shall each be
adjusted annually starting in July 2023, based on the lesser of either (a) changes to the
Consumer Price Index for All Urban Consumers (CPI -U) for Los Angeles -Long Beach -
Anaheim, CA (1982-84=100) All Items as most recently reported by the Bureau of Labor
Statistics for the 12 month period extending backwards from the most recent June 30`h to
the previous July 1st, or (b) three percent (3%) per year. No adjustment amount shall be
due, owing or paid to Surfside Colony by City until approved in advance by the City
Manager.
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3.2. City will not compensate Surfside Colony for any services performed not
specified in Section 1.0 of this Agreement unless the City authorizes such work in
advance and in writing.
4.0 Method of Payment
Surfside Colony shall submit to. City monthly invoices for all Services rendered
pursuant to this Agreement. Such invoices must be submitted within fifteen (15) days of
the end of the month during which the services were rendered and must describe in detail
the services rendered during the period. City will pay Surfside Colony within thirty (30)
days of receiving Surfside Colony's invoice. City will not withhold any applicable
federal or state payroll and other required taxes, or other authorized deductions from
paymentsmade to Surfside Colony.
5.0 Termination
5.1. This -Agreement -may be terminated by either_ P_arty_without_cause-up on_
giving the other party written notice thereof not less than thirty (30) days prior to the date
of termination.
5.2. This Agreement may be terminated by City upon ten (10) days' notice to
Surfside Colony if Surfside Colony fails to provide satisfactory evidence of renewal or
replacement of comprehensive general liability insurance as required by this Agreement
at least twenty (20) days before the expiration date of the previous policy.
6.0 Party Representatives
6.1. The City Manager is the City's representative for purposes of this
Agreement.
6.2. The Colony President is Surfside Colony's sole representative for
purposes of this Agreement.
7.0 Notices
7.1. All notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed forty-eight (48) hours after deposit in
the U.S.. Mail, first class postage prepaid and addressed to the party at the following
addresses:
To City: City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attn: City Manager
With a copy to: Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
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Los Angeles, CA 90071-3101
Attn: Craig A. Steele
To Surfside Colony: Surfside Colony, Ltd
P.O. Box 235
Surfside, CA 90743
(562) 592-2352
Attn: Colony President
7.2. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
8.0 Independent contractor
8.1. Surfside Colony and any of its subcontractors are independent contractors
and neither is an employee of the City. All Services provided pursuant to this Agreement
_shall__be .performed by Surfside_Colony___or__S.urfside-_Colony's_.employees__or_other_ V_ _
personnel under its supervision. Surfside Colony shall determine the means, methods, and
details by which Surfside Colony's personnel shall perform the Services. Surfside Colony
shall be solely responsible for the satisfactory work performance of its personnel engaged
in performing the Services and compliance with the customary professional standards.
8.2. All of Surfside Colony's employees and other personnel performing any
of the Services under this Agreement on behalf of Surfside Colony shall also not be
employees of City and shall at all times be under Surfside Colony's exclusive direction
and control. Surfside Colony and its personnel shall not supervise any of City's
employees; and City's employees shall not supervise any of Surfside Colony's personnel.
Surfside CoIony's personnel shall not wear or display any City uniform, badge,
identification number, or other information identifying such individual as an employee of
City; and Surfside Colony's personnel shall not use any City e-mail address or City
telephone number in the performance of any of the Services under this Agreement.
Surfside Colony shall acquire and maintain at its sole cost and expense such vehicles,
equipment and supplies as Surfside Colony's personnel require to perform any of the
Services required by this Agreement.
8.3. Surfside Colony shall pay all wages, salaries, benefits and other amounts
due to Surfside Colony's employees and other personnel in connection with their
performance of Services under this Agreement and as required by law. Surfside Colony
shall be responsible for all reports and obligations respecting such additional personnel,
including, but not limited to: Social Security taxes, other retirement or pension benefits,
income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance. Notwithstanding any other agency, State, or federal policy, rule,
regulation, statute or ordinance to the contrary, Surfside Colony, and its officers,
employees, agents, and subcontractors (and any officers, employees, agents of such
subcontractors), providing any of the Services under this Agreement shall not become
entitled to, and hereby waive any claims to, any wages, salaries, compensation, benefit or
any incident of employment by City, including but not limited to, eligibility to enroll in,
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or reinstate to membership in, the California Public Employees Retirement System
("PERS") as an employee of City, and entitlement to any contribution to be paid by City
for employer contributions or employee contributions for PERS benefits.
8.4. Surfside Colony shall defend, indemnify and hold harmless City and its
elected and appointed officials, officers and employees, agents, servants, designated
volunteers, and those City agents serving as independent contractors in the role of City
officials, from any and all liability, damages, claims, costs and expenses of any nature to
the extent arising from Surfside Colony's personnel practices, violations or alleged
violations of its personnel practices, and/or the violation of any of the provisions of this
Section 8.0. In addition to all other remedies available under law, City shall have the right
to offset against the amount of any fees due to Surfside Colony under this Agreement any
amount due to City from Surfside Colony as a result of Surfside Colony's failure to
promptly pay to City any reimbursement or indemnification arising under this Section
8.0. Surfside Colony's indemnification obligations under this Section shall survive the
expiration or termination of this Agreement.
9.0 PERS Compliance and Indemnification
9.1. General Requirements. The Parties acknowledge that City is a local
agency member of PERS, and as such has certain pension reporting and contribution
obligations to PERS on behalf of qualifying employees. Surfside Colony agrees that, in
providing its employees and any subcontractors to City to perform any work or other
Services under this Agreement, Surfside Colony shall assure compliance with the Public
Employees' Retirement Law ("PERL"), commencing at Government Code § 20000, as
amended by the Public .Employees' Pension Reform Act of 2013 ("PEPRA"), and the
regulations of PERS. Without limitation to the foregoing, Surfside Colony shall assure
compliance with regard to any of its employees or employees of its subcontractors who
have active or inactive membership in PERS and to those who are retired annuitants and
in performing this Agreement shall not assign or utilize any of its personnel in a manner
that will cause City to be in violation of the PERL, PEPRA or any other applicable
retirement laws and regulations.
9.2. Indemnification. Surfside Colony shall defend (with legal counsel
approved by City, whose approval shall not be unreasonably withheld), indemnify and
hold harmless City, and its City and its elected and appointed officials, officers,
employees, servants, designated volunteers, and those City agents serving as independent
contractors in the role of City officials, from any and all liability, damages, claims, costs
and expenses of any nature to the extent arising from, caused by, or relating to Surfside
Colony's violation of any provisions of this Section 9.0. This duty of indemnification is
in addition to Surfside Colony's duty to defend, indemnify and hold harmless as set forth
in any other provision of this Agreement. Surfside Colony's indemnification obligations
under this Section 9.0 shall survive the expiration or termination of this Agreement.
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10.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written
approval of the City. Surfside Colony is fully responsible to City for the performance of
any and all subcontractors.
11.0 Prohibition Against Assignment or Delegation
Surfside Colony shall not assign any of its rights or interests, or delegate any of its
duties under this Agreement, either in whole or in part,, without the prior written consent
of City. Any purported assignment or delegation in violation of this Section shall be void
and without effect, and shall entitle City to terminate this Agreement. As used in this
Section, "assignment" and "delegation" means any sale, gift, pledge, hypothecation,
encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities
in or arising from this Agreement to any person or entity, whether by operation of law or
otherwise, and regardless of the legal form of the transaction in which the attempted
transfer occurs.
12.0 Insurance
12.1. General Requirements. Surfside Colony must not commence work under
this Agreement until it has provided evidence satisfactory to the City. that Surfside
Colony has secured all insurance required under this Section 12.0.
12.2. Minimum Scone and Limits of Insurance. Surfside Colony shall, at its
expense, procure and maintain for the duration of the Agreement, insurance against
claims for death of or injuries to persons or damages to property that may arise from or in
connection with the performance of this Agreement, as follows:
12.2.1. Commercial General Liability Insurance: Surfside Colony shall
maintain limits no less than $2,000,000 per occurrence for bodily injury, death, personal
injury and property damage, and if Commercial General Liability Insurance or other form
with a general aggregate limit is used, either the general aggregate limit shall apply
separately to this Agreement/location or the general aggregate limit shall be twice the
required occurrence limit: Coverage shall be at least as broad as the latest version of
Insurance Services Office Commercial General Liability coverage (occurrence form CG
0001). If Surfside Colony is a limited liability company, the commercial general liability
coverage shall be amended so that Surfside Colony and its managers, affiliates,
employees, agents and other persons necessary or incidental to its operation are insureds.
12.2.2. Automobile Liability Insurance: Surfside Colony shall maintain
limits no less than $1,000,000 per accident for bodily injury, death and property damage.
Coverage shall be at least as broad as Insurance Services Office Business Auto Coverage
form number CA 0001, code 1 (any auto).
12.2.3. Professional Liability (or Errors and Omission Liability): Surfside
Colony shall maintain limits no less than $1,000,000 per claim/aggregate. If a "claims
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made" policy is provided, then the policy shall be endorsed to provide an extended
reporting period of not less than three years.
12.2.4. Workers' Compensation Insurance in the amount required by law;
and Employer's liability with minimum limits of $1,000,000 per accident and in the
aggregate for bodily injury, death or disease.
12.3. Acceptability of Insurers. The Insurance policies required under this
Section shall be placed with insurers with a current A.M. Best's rating no less than
ANIII, licensed to do business in California, and satisfactory to the City.
12.4. Additional Insured.
12.4.1. For general liability insurance, City, its elected and appointed
officials, officers, employees, agents, designated volunteers and those City agents acting
as independent contractors in the role of City officials shall be covered as additional
- insureds -with respect-to-the-services-or-operations-performed-by-or-on--behalf=of--the
Surfside Colony, including materials, parts or equipment furnished in connection with
such work.
12.4.2. For automobile liability insurance, City, its elected and appointed
officials, officers, employees, agents, designated volunteers and those City agents
serving as independent contractors in the role of City officials, shall be covered as
additional insureds with respect to the ownership, operation, maintenance, use, loading
or unloading of any auto owned, leased, hired or borrowed by the Surfside Colony or for
which the Surfside Colony is responsible.
12.4.3. These additional insured provisions shall also apply to any
excess/umbrella liability policies.
12.5. Cancellations or Modifications to Coverasie. The insurance policies shall
contain the following provisions, or Surfside Colony shall provide endorsements on
forms supplied or approved by City to state: (1) coverage shall not be suspended,
voided, reduced or canceled except after 10 days prior written notice by certified mail,
return receipt requested, has been given to City; (2) any failure to comply with
reporting or other provisions of the policies, including breaches of warranties, shall not
affect coverage provided to City, its elected and appointed officials, officers,
employees, agents, designated volunteers, and those City agents serving as independent
contractors in the role of City officials;
12.6. Primary and Non -Contributing. Coverage shall be primary insurance as
respects the City, its elected and appointed officials, officers, employees, agents,
designated volunteers and those City agents serving as independent contractors in the
role of City officials, or if excess, shall stand in an unbroken chain of coverage excess
of the Surfside Colony's scheduled underlying coverage and that any insurance or self-
insurance maintained by the City, its elected and appointed officials, officers,
employees, agents. designated volunteers and those City agents serving as independent
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contractors in the role of City officials, shall be excess of the Surfside Colony's
insurance and shall not be called upon to contribute with it;
12.7. Separation of Insureds. All insurance required by this Section shall contain
standard separation of insureds provisions and shall not contain any special limitations on
the scope of protection afforded to City, its elected and appointed officials, officers,
employees, agents, designated volunteers and those City agents serving as independent
contractors in the role of City officials.
12.8. Deductibles and Self -Insured Retentions. Any deductibles or self-insured
retentions shall be declared to and approved by City. Surfside Colony guarantees that, at
the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or
self-insured retentions as respects City, its elected and appointed officials, officers,
employees, agents, designated volunteers and those City agents serving as independent
contractors in the role of City officials; or (2) Surfside Colony shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and administrative
and defense expenses.
12.9. Waiver of Subrogation. Each insurance policy required by this Agreement
shall expressly waive the insurer's right of subrogation against City and its elected and
appointed officials, officers, employees, agents, designated volunteers and those City
agents serving as independent contractors in the role of City officials. Surfside Colony
hereby waives all rights of subrogation against City.
12.10. City Remedy for Noncompliance. If Surfside Colony does not maintain
the policies of insurance required under this Section in full force and effect during the
term of this Agreement, or in the event any of Surfside Colony's policies do not comply
with the ,requirements under this Section, City may either immediately terminate this
Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to,
take out the necessary insurance and pay, at Surfside Colony's expense, the premium
thereon. Surfside Colony shall promptly reimburse City for any premium paid by City or
City may withhold amounts sufficient to pay the premiums from payments due to
Surfside Colony.
12.11. Evidence of Insurance. Prior to the performance of Services under this
Agreement, Surfside Colony shall furnish City with original certificates of insurance and
all original endorsements evidencing and effecting the coverages required under this
Section on forms satisfactory to and approved by City. The certificates and endorsements
for each insurance policy shall be signed by a person authorized by that insurer to bind
coverage on its behalf, and shall be on forms provided by City if requested. Surfside
Colony may provide complete, certified copies of all required insurance policies to City.
Surfside Colony shall maintain current endorsements on file with City's Risk Manager.
All certificates and endorsements shall be received and approved by the City before work
commences. City reserves the right to require complete, certified copies of all required
insurance policies, at any time. Surfside Colony shall also provide proof to City that
insurance policies expiring during the term of this Agreement have been renewed or
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replaced with other policies providing at least the same coverage. Surfside Colony shall
furnish such proof at least two weeks prior to the expiration of the coverages.
12.12. Indemnity Requirements Not Limiting. Procurement of insurance by
Surfside Colony shall not be construed as a limitation of Surfside Colony's liability or as
full performance of Surfside Colony's duty to indemnify City under Section 13.0.
12.13. Broader Coverage/Higher Limits. If Surfside Colony maintains broader
coverage and/or higher limits than the minimums required above, City requires and shall
be entitled to the broader coverage and/or the higher limits maintained by Surfside
Colony. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to City.
12.14. Subcontractor Insurance Requirements. Surfside Colony shall require each
of its subcontractors that perform Services under this Agreement to maintain insurance
coverage that meets all of the requirements of this Section 12.0.
13.0 Indemnification
13.1. Indemnities.
13.1.1. To the fullest extent permitted by law, Surfside Colony shall, at its
sole cost and expense, protect, defend, hold harmless and indemnify City and its elected
and appointed officials, officers, attorneys, agents, employees, designated volunteers,
successors, assigns and those City agents serving as independent contractors in the role of
City officials (collectively "Indemnitees" in this Agreement), from and against any and
all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings,
judgments, penalties, bid protests, stop notices, liens and losses of any nature whatsoever,
including but not limited to fees of accountants, attorneys and other professionals, and all
costs associated therewith, and the payment of all consequential damages (collectively
"Claims"), in law or equity, whether actual, alleged or threatened, which arise out of,
pertain to, or relate to the acts or omissions of Surfside Colony, its officers, agents,
servants, employees, subcontractors, materialmen, suppliers, or contractors, or their
officers, agents, servants or employees (or any entity or individual that Surfside Colony
shall bear the legal liability thereof) in the performance of this Agreement, including the
Indemnitees' active or passive negligence, except for CIaims arising from the sole
negligence or willful misconduct of the Indemnitees, as determined by final arbitration or
court decision or by the agreement of the Parties. Surfside Colony shall defend the
Indemnitees in any action or actions filed in connection with any Claims with counsel of
the Indemnitees' choice, and shall pay all costs and expenses, including all reasonable
attorneys' fees and experts' costs actually incurred in connection with such defense.
Surfside Colony shall reimburse the Indemnitees for any and all legal expenses and costs
incurred by the Indemnitees in connection therewith.
13.1.2. Surfside Colony shall defend, indemnify and hold harmless City in
accordance with Sections 8.0 and 9.,0.
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13.2. Subcontractor Indemnification. Surfside Colony shall obtain executed
indemnity agreements with provisions identical to those in this Section 13.0 from each
and every subcontractor or any other person or entity involved by, for, with or on behalf
of Surfside Colony in the performance of this Agreement. If Surfside Colony fails to
obtain such indemnities, Surfside Colony shall be fully responsible and indemnify, hold
harmless and defend the Indemnitees from and against any and all Claims in law or
equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out
of, pertain to, or relate to the acts or omissions of Surfside Colony's subcontractor, its
officers, agents, servants, employees, subcontractors, materialmen, contractors or their
officers, agents, servants or employees (or any entity or individual that Surfside Colony's
subcontractor shall bear the legal liability thereof) in the performance of this Agreement,
including the Indemnitees' active or passive negligence, except for Claims arising from
the sole negligence or willful misconduct of the Indemnitees, as determined by final
arbitration or court decision or by the agreement of the Parties.
13.3. Workers' Compensation Acts Not Limiting. The obligations of Surfside
Colony -under-this--Section I3:0 -or-anyother-provisi-on-of thisAgreement--shall-not-b-e-
limited by the provisions of any workers' compensation act or similar act. Surfside
Colony expressly waives any statutory immunity under such statutes or laws as to City,
its elected and appointed officials, officers, agents, employees, designated volunteers and
those City agents serving as independent contractors in the role of City officials.
13.1. Insurance Requirements Not Limiting. City does not, and shall not, waive
any rights that it may possess against Surfside Colony because of the acceptance by City,
or the deposit with City, of any insurance policy or certificate required pursuant to this
Agreement. The indemnities and obligations in this Section 13.0 shall apply regardless of
whether or not any insurance policies are determined to be applicable to the Claims or
Liabilities asserted against City or any of the other Indemnitees. Surfside Colony's
indemnity obligation set forth in this Section 13.0 shall also not be limited by the limits
of any other policies of insurance required or provided by Surfside Colony pursuant to
this Agreement.
13.5. Survival of Terms. Surfside Colony's covenants, duties and obligations
under this Section 1.3.0 shall survive the expiration or termination of this Agreement.
14.0 Non -Discrimination and Equal Employment Opportunity
Surfside Colony affirmatively represents that it is an equal opportunity employer.
In the performance of this Agreement, Surfside Colony shall not discriminate against any
subcontractor, employee, or applicant for employment because of race, religion, color,
national origin, handicap, ancestry, sex, gender, sexual orientation, gender identity,
gender expression, marital status, national origin, ancestry, age, physical disability,
mental disability, medical condition, genetic information, or any other basis prohibited by
taw. Surfside Colony will take affirmative action to ensure that subcontractors and
applicants are employed, and that employees are treated during employment, without
regard to their race, color, religious creed, sex, gender, gender identity, gender
expression, marital status, national origin, ancestry, age, physical disability, mental
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disability, medical condition, genetic information or sexual orientation, or any other basis
prohibited by law.
15.0 Labor Certification
By its signature hereunder, Surfside Colony certifies that it is aware of the
provisions of Section 3700 of the California Labor Code that require every employer to
be insured against liability for Worker's Compensation or to undertake self-insurance in
accordance with the provisions of that Code, and agrees to comply with such provisions
before commencing the performance of the Services.
16.0 Nuisance
Surfside Colony shall not maintain, commit or permit the maintenance or
commission of any nuisance in connection with the performance of Services under this
Agreement.
17.0 Permits and Licenses
Surfside Colony and its employees, at its/their sole expense, shall obtain and
maintain during the term of this Agreement, all appropriate permits, licenses, and
certificates that may be required by Iaw in connection with the performance of Services
under this Agreement.
18.0 Time of the Essence
Time is of the essence in respect to all provisions of this Agreement that specify a
time for performance.
19.0 Compliance with Laws
In the performance of this Agreement, Surfside Colony shall abide by and
conform to any and all applicable laws, statutes, safety rules, and practices of the United
States, the State of California, Charter of the City of Seat Beach, and any other local laws
("Law and Practices"). Further, Consultant warrants that all work done under this
Agreement shall be in strict compliance with such Laws and Practices, including, but not
limited to, Cal/OSHA regulations. Consultant shall dispose of all materials used in
conjunction with the performance of this Agreement in strict compliance with all local,
state, and federal environmental and/or waste management rules, regulations, laws,
statutes and practices.
20.0 2016 Contract Superseded
The 2016 contract and all terms, provisions, conditions and Exhibits included
therein, are replaced and superseded by this Agreement, and the 2016 contract is and
shall be void and have no further force and effect.
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21.0 Prevailing Wage and Payroll Records
This Agreement calls for services that, in whole or in part, constitute "public
works" as defined in the California Labor Code, and Consultant shall comply in all
respects with all applicable provisions of the California Labor Code, including those set
forth in Exhibit B, attached hereto and incorporated by reference herein.
22.0 Entire Agreement
This Agreement contains the entire Agreement of the parties with respect to the
subject matter hereof, and supersedes all prior negotiations, understandings, or
agreements. This Agreement may only be modified by a writing signed by both parties.
23.0 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.
24.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
25.0 No Third Party Beneficiaries
This Agreement is made solely for the benefit of the Parties to this Agreement and
their respective successors and assigns, and no other person or entity shall be deemed to
have any rights hereunder against either Party by virtue of this Agreement.
26.0 Waiver
No delay or omission to exercise any right, power or remedy accruing to City
under this Agreement shah impair any right, power or remedy of City, nor shall it be
construed as a waiver of,, or consent to, any breach or default. No waiver of any breach,
any failure of a condition; or any right or remedy under this Agreement shall be (1)
effective unless it is in writing and signed by the Party making the waiver, (2) deemed to
be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy,
or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
27.0 Prohibited Interests
27.1. Surfside Colony covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the Services, or which
would conflict in any manner with the performance of the Services. Surfside Colony
further covenants that, in performance of this Agreement, no person having any such
interest shall be employed by it. Furthermore, Surfside Colony shall avoid the appearance
of having any interest, which would conflict in any manner with the performance of the
Services. Surfside Colony shall not accept any employment or representation during the
13 of 20
"M
term of this Agreement which is or may likely make Surfside Colony "financially
interested" (as provided in California Government Code §§ 1090 and 87100) in any
decision made by City on any matter in connection with which Surfside Colony has been
retained.
27.2. Surfside Colony further warrants and maintains that it has not employed or
retained any person or entity, other than a bona fide employee working exclusively for
Surfside Colony, to solicit or obtain this Agreement. Nor has Surfside Colony paid or
agreed to pay any person or entity, other than a bona fide employee working exclusively
for Surfside Colony, any fee, commission, gift, percentage, or any other consideration
contingent upon the execution of this Agreement. Upon any breach or violation of this
warranty, City shall have the right, at its sole and absolute discretion, to terminate this
Agreement without further liability, or to deduct from any sums payable to Surfside
Colony hereunder the full amount or value of any such fee, commission, percentage or
gift.
-~Surfside-C-olony-warrants-and maintains -that -it -has -no -knowledge -that -any
officer or employee of City has any interest, whether contractual, non -contractual,
financial, proprietary, or otherwise, in this transaction or in the business of Surfside
Colony, and that if any such interest comes to the knowledge of Surfside Colony at any
time during the term of this Agreement, Surfside Colony shall immediately make a
complete, written disclosure of such interest to City, even if such interest would not be
deemed a prohibited "conflict of interest" under applicable laws as described in this
Section.
28.0 Non -Appropriation of Funds
Payments to be made to Surfside Colony by City for any Services performed
within the current fiscal year are within the current fiscal budget and within an available,
unexhausted fund. In the event that City does not appropriate sufficient funds for
payment of Surfside Colony's Services beyond the current fiscal year, this Agreement
shall cover payment for Surfside Colony's Services only to the conclusion of the last
fiscal year in which City appropriates sufficient funds and shall automatically terminate
at the conclusion of such fiscal year.
29.0 Mutual Cooperation
29.1. City's Cooperation. City shall provide Surfside Colony with all pertinent
data, documents and other requested information as is reasonably available for Surfside
Colony's proper performance of the Services required under this Agreement.
29.2. Surfside Colony's Cooperation. In the event any claim or action is brought
against City relating to Surfside Colony's performance of Services rendered under this
Agreement, Surfside Colony shall render any reasonable assistance that City requires.
14 of 20
30.0 Attorneys' Fees
If either Party commences an action against the other Party, either legal,
administrative or otherwise, arising out of or in connection with this Agreement, the
prevailing Party in such litigation shall be entitled to have and recover from the losing
Party its reasonable attorneys' fees and other costs incurred in connection with such
action.
31.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the
Agreement as if set forth in full herein. In the event of any material discrepancy between
the terms of any exhibit so incorporated and the terms of this Agreement, the terms of
this Agreement shall control.
32.0 Corporate Authority
Each person executing this Agreement on behalf of Surfside Colony warrants that
he or she is duly authorized to execute this Agreement on behalf of said Party and that by
his or her execution, Surfside Colony is formally bound to the provisions of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above written.
15 of 20
92-
CITY OF SEAL BEACH
Attest
Approved as to
91
Attorney
SURFSIDE COLONY, LTD.,
a California nonprofit mutual benefit
corporation
By:
Name:
Its:
By:
Name:
Its:
(Please note, hvo signatures required for
corporations pursuant to California
Corporations Code Section 313 from each of
the following categories: (i) the chairperson
of the board, the president or any vice
president, and (ii) the secretary, any
assistant secretary, the chief financial
officer or any assistant treasurer of such
corporation.)
PROOF OF AUTHORITY TO BIND
CONTRACTING PARTY REQUIRED
16 of 20
EXHIBIT A
Surfside Colony's Proposal
17
c-5-111, FIWA 70 � Y_ t I WI-.
P. O. BOX 235 - SURFSIDE, CALIFORNIA 90743
OFFICE (562) 592-2352 - FAX (562) 592-2667
www.surfsidecolony.org - office@surfsidecolony.org
August 25, 2022
City of Seal Beach
2118th Street
Seal Beach, California 90740
Attn: City Manager
Surfside wishes to enter into Professional Services Agreement for Surfside Beach Cleaning, Maintenance
and Berm Construction between Surfside Colony, Ltd and the City of Seal Beach, CA.
Agreement:
Surfside Colony shall keep Surfside Beach clean and free of trash and debris to the same standard to
which the City maintains its other beaches. Cleaning shall be provided 3-5 times per week or more often
if needed as determined by the City.
Surfside Colony shall annually construct and maintain a winter sand berm on that certain real property
owned by Surfside Colony located adjacent to Surfside Beach and described as follows: the sand area on
the beach between Anderson Street and the Seal Beach Naval Weapons Station from sundecks to the
mean high tide line. Surfside Colony shall construct and maintain the berm on its property to the same
standard to which the City constructs sand berms for the protection of beaches and properties, and in
accordance with the City's requirements.
The City will pay Surfside Colony the sum of $961.60 (nine hundred sixty-one dollars and sixty cents) per
month for the annual construction, maintenance and removal of a winter sand berm and also will pay
Surfside Colony the sum of $2,671.18 (two thousand six hundred seventy-one dollars and eighteen
cents) per month for the cleaning and maintenance of the real property owned by Surfside Colony
located adjacent to Surfside Beach and described as follows: the sand area on the beach between
OA on Street and the Seal Beach Naval Weapons Station from sundecks to the mean high tide line.
Dave Evans
President
EXHIBIT B
TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS
I. This Agreement calls for services that, in whole or in part, constitute "public works" as
defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor
Code ("Chapter 1"). Further, Consultant acknowledges that this Agreement is subject to (a)
Chapter 1 and (b) the rules and regulations established by the Department of Industrial Relations
("DIR') implementing such statutes. Therefore, as to those Services that are "public works",
Consultant shall comply with and be bound by all the terms, rules and regulations described in
I (a) and I (b) as though set forth in full herein.
2. California law requires the inclusion of specific Labor Code provisions in certain contracts.
The inclusion of such specific provisions below, whether or not required by California law, does
not alter the meaning or scope of Section 1 above.
3. Consultant shall be registered with the Department of Industrial Relations in accordance with
California Labor Code Section 1725.5, and has provided proof of registration to City prior to the
Effective Date of this Agreement. Consultant shall not perform work with any subcontractor that
is not registered with DIR pursuant to Section 1725.5. Consultant and subcontractors shall
maintain their registration with the DIR in effect throughout the duration of this Agreement. If
Consultant or any subcontractor ceases to be registered with DIR at any time during the duration
of the project, Consultant shall immediately notify City.
4. Pursuant to Labor Code Section 1771.4, Consultant's Services are subject to compliance
monitoring and enforcement by DIR. Consultant shall post job site notices, as prescribed by DIR
regulations.
5. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for
each craft, classification, or type of worker needed to perform the Agreement are on file at City
Hall and will be made available to any interested party on request. Consultant acknowledges
receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and
Consultant shall post such rates at each job site covered by this Agreement.
6. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774
and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for
failure to pay prevailing wages. Consultant shall, as a penalty to City, forfeit $200.00 for each
calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined
by the DIR for the work or craft in which the worker is employed for any public work done
pursuant to this Agreement by Consultant or by any subcontractor.
7. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776,
which requires Consultant and each subcontractor to: keep accurate payroll records and verify
such records in writing under penalty of perjury, as specified in Section 1776; certify and make
such payroll records available for inspection as provided by Section 1776; and inform City of the
location of the records.
8. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5,
1777.6 and 1777.7 and California Code of Regulations, Title 8, Section 200 et seq. concerning the
employment of apprentices on public works projects. Consultant shall be responsible for
compliance with these aforementioned Sections for all apprenticeable occupations. Prior to
commencing work under this Agreement, Consultant shall provide City with a copy of the
information submitted to any applicable apprenticeship program. Within 60 days after concluding
work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a
verified statement of the journeyman and apprentice hours performed under this Agreement.
9. Consultant shall not perform work with any Subcontractor that has been debarred or
suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law
providing for the debarment of contractors from public works. Consultant and subcontractors shall
not be debarred or suspended throughout the duration of this Contract pursuant to Labor Code
Section 1777.1 or any other federal or state law providing for the debarment of contractors from
public works. If Consultant or any subcontractor becomes debarred or suspended during the
duration of the project, Consultant shall immediately notify City.
10. Consultant acknowledges that eight hours labor constitutes a legal day's work. Consultant
shall comply with and be bound by Labor Code Section 1810. Consultant shall comply with and
be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who
work excess hours. Consultant shall, as a penalty to City, forfeit $25.00 for each worker employed
in the performance of this Agreement by Consultant or by any subcontractor for each calendar day
during which such worker is required or permitted to work more than eight hours in any one
calendar day and 40 hours in any, one calendar week in violation of the provisions of Division 2,
Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work
performed by employees of Consultant in excess of eight hours per day, and 40 hours during any
one week shall be permitted upon public work upon compensation for all hours worked in excess
of eight hours per day at not less than one and one-half times the basic rate of pay.
11. California Labor Code Sections 1860 and 3700 provide that every employer will be required
to secure the payment of compensation to its employees. In accordance with the provisions of
California Labor Code Section 1.861, Consultant hereby certifies as follows:
"I am aware of the provisions of Section 3700 of the Labor Code which require every
employer to be insured against liability for workers' compensation or to undertake
self-insurance in accordance with the provisions of that code, and I will comply with
such provisions before commencing the performance of the work of this contract."
12. For every subcontractor who will perform work on the project, Consultant shall be
responsible for such subcontractor's compliance with Chapter 1 and Labor Code Sections 1860
and 3700, and Consultant shall include in the written contract between it and each subcontractor a
copy of those statutory provisions and a requirement that each subcontractor shall comply with
those statutory provisions. Consultant shall be required to take all actions necessary to enforce
such contractual provisions and ensure subcontractor's compliance, including without limitation,
conducting a periodic review of the certified payroll records of the subcontractor and upon
becoming aware of the failure of the subcontractor to pay his or her workers the specified
prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any
failure.
9 06
13. To the maximum extent permitted by law, Consultant shall indemnify, hold harmless and
defend (at Consultant's expense with counsel reasonably acceptable to City) City, its elected and
appointed officials, officers, employees, agents and independent contractors serving in the role of
City officials, and volunteers from and against any demand or claim for damages, compensation,
fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above
by any person or entity (including Consultant, its subcontractors, and each of their officials,
officers, employees and agents) in connection with any work undertaken or in connection with the
Agreement, including without limitation the payment of all consequential damages, attorneys'
fees, and other related costs and expenses. All duties of Consultant under this Section shall
survive the termination of the Agreement.
A� " CERTIFICATE OF LIABILITY INSURANCE
DATE(MM/DD/YYYY)
10/3/2022
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER
PTL Insurance Brokers, Inc.
1345 Center Court Dr.
Covina CA 91724
CONTACT
Brandon Pedevillano
PONE FAx
E • 626-967-9581 A/c No): 626-967-1664
ADDRESS: cerUficates@ptlinsurance.com
INSURERS AFFORDING COVERAGE NAIC #
Y
INSURERA: Philadelphia Indemnity Ins. Co.
PHPK2389749
INSURED SURFCOL-01
INSURER B: Greenwich Insurance Company 22322
Surfside Colony, LTD.
PO Box 235
INSURER c: Employers Preferred Insurance Company 10346
INSURER 0: Great American Insurance Company 16691
Surfside CA 90743
INSURER E :
INSURER F :
COVERAGES CERTIFICATE NUMBER: 1627803422 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR
OF INSURANCE
ADDLISUBRPTYPE
INSD
WVD
POLICY NUMBER
MOM/IDDY EFF
MMIDD POLICY EXP
LIMITS
A
X COMMERCIAL GENERAL LIABILITY
Y
PHPK2389749
3/29/2022
3/29/2023
EACH OCCURRENCE $1,000,000
CLAIMS -MADE FT1 OCCUR
PREMISES EaEoccurrence) $100,000
MED EXP (Anyone person) $ 5,000
PERSONAL &ADV INJURY $1,000,000
GEN'L AGGREGATE LIMIT APPLIES PER:
GENERAL AGGREGATE $2,000,000
POLICY ❑ JECOT- FILOC
PRODUCTS - COMP/OP AGG S2,000,000
$
OTHER:
AUTOMOBILE LIABILITY
COMBINED SINGLE LIMIT $
Ea accident
BODILY INJURY (Per person) $
ANY AUTO
OWNED SCHEDULED
AUTOS ONLY AUTOS
HIRED NON -OWNED
AUTOS ONLY AUTOS ONLY
BODILY INJURY (Per accident) $
PROPERTY DAMAGE $
Per accident
B
X
UMBRELLA LIAB
HCLAIMS-MADE
OCCUR
PPP7459985
3/29/2022
3/29/2023
EACH OCCURRENCE $10,000,000
AGGREGATE $ 10,000,000
EXCESS LIAR
DED I I RETENTION$
Prod/COm IA $10,000,000
C
WORKERS COMPENSATIONPER
AND EMPLOYERS' LIABILITY
ANYPROPRIETORIPARTNER/EXECUTIVE YIN
EIG2109972
7/1/2022
7!1/2023
X STATUTE ERH
E.L. EACH ACCIDENT $1,000,000
E.L. DISEASE- EA EMPLOYEE $ 1,000,000
OFFICER/MEMBEREXCLUDEDT
(Mandatory in NH)
E.L. DISEASE- POLICY LIMIT $1,000,000
If yes, describe under
DESCRIPTION OF OPERATIONS below
D
Directors and Officers
EPP3325289
10/25/2021
10/25/2022
Each Claim 1,000,000
Aggregate 1,000,000
Deducible 2,500
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
Certificate holder is named Additional Insured.
rrcoTgCu+A're ung neo rANr.FI 1 ATInN
U 7ySS=1U10 AGUKU GUKI-UKAI IUIV. All rigmis reserved.
ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
City of Seal Beach
211 Eighth Street
Seal Beach CA 90740
AUTHORIZED REPRESENTATIVE
U 7ySS=1U10 AGUKU GUKI-UKAI IUIV. All rigmis reserved.
ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD