HomeMy WebLinkAboutCC AG PKT 2009-09-28 #F
DATE: September 28, 2009
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Vince Mastrosimone, Director of Public Works
SUBJECT: AWAR® CONTRACT FOR AIVIVUAL SAIV® EERM
CONSTRUCTION AN® REMOVAL
SUMMARY OF REQUEST:
The City Council is asked to adopt Resolution No. 5922 awarding a contract for
the Annual Sand Berm Construction and Removal to Post Earthworks
Constructors Inc. in the amount of $199,962 for 3 years at an average of $66,654
per year.
SAC~CCROUN®:
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
21 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.
At the August 10, 2009 City Council Meeting, Council approved plans and
specifications to solicit for bids. On September 8, 2009, City Clerks office
received 3 bids with the following results.
RANK ~ CONTRACTOR ~ BID AMOUNT
1 I Post_Earthworks Constructors, Inc.__~___ _ $199,962
_._......?.__._..._ LT Engineering.._. ____....._. _._...._ ....._.~ ._._...$316,200
.. _... _ .
3 ' Cattrac Construction, Inc. $443 691
Agenda Item F
Page 2
Based upon the references, qualifications, work experience and cost, staff
recommends selecting Post Earthworks Constructors, Inc. as the lowest
responsible bidder at $199,962. .
1=11Vi4NCIAL IIViPACT:
Sufficient funds in the amount of $136,700 have been allocated in the Fiscal Year
09/10 budget under tidelands contract professional services for this project and
other coastal projects.
REC011AlInEN®Al'I®N:
It is recommended City Council adopt resolution No. 5922 awarding a contract
for the Annual Sand Berm Construction and Removal to Post Earthworks
Constructors Inc. in the amount of $199,962 for 3 years at an average of $66,654
per year.
SU ITTED B
Vince Mastrosimone
Director of Public Works
Attachments:
NOTED AND APPROVED:
~- '
David Carmany, City Manager
A. Resolution No. 5922
B. Agreement
RESOLUTION NUMBER 5922
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH AWARDING THE BID FOR THE ANNUAL SAND BERM
CONSTRUCTION AND REMOVAL CONTRACT
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEAL BEACH
DOES HEREBY RESOLVE:
Section 1. The City Council hereby approves, the contract between the City of
Seal Beach and Post Earthworks Constructdrs, Inc. for Annual Sand Berm
Construction and Removal.
Section 2. The Council hereby directs the City Manager to execute the contract
for Annual Sand Berm Construction and Removal.
PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach at a
meeting held on the 28th day of September ~, 2009 by the following vote:
AYES: COUNCILMEMBERS
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ABSTAIN: COUNCILMEMBERS
Mayor
ATTEST:
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, California, do hereby certify
that the foregoing resolution is the original copy of Resolution Number 5922 on
file in the office of the City Clerk, passed, approved, and adopted by the City
Council of the City of Seal Beach, at a regular meeting held on the 28th day
of September , 2009.
City Clerk
AN AGREEMENT F®R
3 ~'ea~° annual T~Tlan~e~° Sand e~°~n
~'®nst~°uc~`i®n and 12~®val
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Post Earthwork Constructors
2967 E. Coronado Street
Anaheim, CA 92806
THIS AGREEMENT is made and entered into this 28 day of September, 2009, by and between
the City of Seal Beach, a California charter city ("City"), and Post Earthwork Constructors, a
corporation ("Contractor'.
RECITALS
A. WHEREAS, the City Council has approved the plans and specifications for the 3 Year
Annual Winter Sand Berm Construction and Removal ("Project");
B. WHEREAS, Contractor has submitted a bid to City for the Project dated September 8,
2009.
NOW, THEREFORE, in consideration of perfonnance by the parties of the mutual promises,
covenants, and conditions herein contained, the parties hereto agree as follows:
AGREEMENT
Contractor's Services.
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.
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), Worker's Compensation Insurance Certificate (Exhibit C), Insurance
Endorsements (Exhibit D), Acknowledgment of Penal and Civil Penalties Concerning Contractor
Licensing Laws (Exhibit E) and Labor Law Requirements (Exhibit F) 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.
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 therefore, except such labor, materials, equipment and services as are specified in the
Contract Documents to be furnished by Owner.
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.
Effective Date. This Agreement is effective as of September 28, 2009 (the "Effective Date"), and
shall remain in full force and effect until Contractor has rendered the services required by this Agreement.
Pavment. For performing and completing the work in accordance with the Contract Documents,
Owner shall pay Contractor, in full compensation therefor, the contract sum set forth in the Bidding
Schedule. 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, famished or
incurred for completion of the work as specified in the contract Documents. Owner 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.
Contractor's Personnel.
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.
Contractor shall be responsible for payment of all employees' wages and berLefits, 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.
Contractor shall indemnify and hold harmless City and its elected officials, officers and
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.
Contractor is, and shall at all times remain as 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.
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.
Contractor's Duty. Contractor shall 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 any and all claims, damages,
penalties, obligations, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law
or equity, to property or persons, including without limitation wrongful death, bid protests, and stop
notice actions, 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
lndemnitees. 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 incur ed 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 the City or the other Indemnitees.
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.
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 Indemnitor.
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 an Contractor shall be conclusive in favor of the Indemnitee's right to
recover under this indemnity provision.
Insurance.
Liability Insurance. 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 and
professional negligence which may arise from or in connection with the performance of the services
hereunder by Contractor, and its agents, representatives, employees and subconsultants. Contractor shall
complete and execute the following documents attached as Exhibits hereto and incorporated herein by this
reference:
Exhibit D-1: Additional Insured Endorsement -Commercial General Liability
Exhibit D-2: Additional Insured Endorsement -Automobile Liability
Exhibit D-3: Additional Insured Endorsement
Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at
least as broad as defined below:
Insurance Services Office Commercial General Liability coverage (occurrence
form CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering
Automobile Liability, code 1 (any auto).
Worker's Compensation insurance as required by the State of California and
Employer's Liability Insurance.
Professional Liability insurance. Contractor shall provide to City the standard
form issued by the carrier.
below:
Minimum Limits of Insurance. Contractor shall maintain limits no less than as defined
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.
Automobile Liability: $2,000,000 per accident for bodily injury and property
damage.
Employer's Liability: $1,000,000 per accident and in the aggregate for bodily
injury or disease and Workers' Compensation Insurance in the amount required by law.
Deductibles and Self-Insured Retentions. Contractor shall inform City of any deductibles
or self-insured retentions except with respect to professional liability insurance.
Other Insurance Provisions. The general liability and automobile liability policies are to
contain, or be endorsed to contain, the following provisions:
City, its officers, officials, employees, designated volunteers and agents serving
as independent contractors in the role of city or agency officials, are to be covered as additional insureds
as respects: liability azising 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 or agency officials which are not also limitations applicable to
the named insured.
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 or agency 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 or agency officials shall be excess of Contractor's insurance
and shall not contribute with it.
Contractor's insurance shall apply sepazately to each insured against whom claim
is made or suit is brought, except with respect to the limits of the insurer's liability.
Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled or materially modified except after 30 days prior written notice by
registered first class mail has been given to City.
Each insurance policy, except for the professional liability policy, required by
this clause 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.
Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII unless waived in writing by City's Risk Manager.
Verification of Coveraee. All insurance coverages 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.
Liquidated Damaees. 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 Owner 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 $750 per working day. Such amount is hereby agreed upon as
liquidated damages for the loss to the Owner 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 Owner 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 shail 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.
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.
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: Chris Post, President
Post Earthwork Constructors
2967 E. Coronado Street
Anaheim, CA 92806
Telephone: 714-632-5290
Fax: 714-632-7967
Non-Assi ability; 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.
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.
Non-Waiver of Tenns R.i~hts 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.
Attorneys' Fees. In the event that either parry to this Agreement shall commence~any legal action
or proceeding to enforce or interpret the provisions of this Agreement, the prevailing pa.*ty in such action
or proceeding shall be entitled to recover its costs of suit, including all attorneys' fees incurred in
connection with such enforcement or interpretation.
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.
Entire A~eement. 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.
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:
City Manager
Attest:
By:
Linda Devine, City Clerk
Approved as to Form:
By:
Quinn M. Barrow, City Attorney
ON CTOR:
~~ --~
By.
ame. stopher Post
Title: President
By:
Name:
Title:
Jurat
State of California
County of ~~
Subscribed and sworn to (or affirmed) before me on this ~ sr day of S~ ~(d~~
20 c~ by ~'~ 12ZSrtb off t~$Z P ®ST
proved to me on the basis of satisfactory evidence to be the persolaf srjwho appeared before me.
g .-
Signature
(Notary seal)
„~ RANDAtI LEE GRIMflA
.
Commission # 1753823
_
Notary Pudllc - CalltorMta
/+~Or~ang® County .~}~
v.W AIL I~ ~J~eT~~~fV~~
OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
The wording ojall Jtvots completed in California ajer January 1, 2008 must
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document must be signed AF7"1sR the oath or t~rmrYion. Ijthe document was
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(Additional information) .Signature of the notary public must match the signature on file with the office
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Impression must not cover text or lines, If seal impression smudges, re-seal if a
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Indicate title or type of attached document, number of pages and date.
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`1008 Version CAPA v1.I.07 300-873-9&6~ ~v~r~,v.NotaryClass~s.corti