HomeMy WebLinkAboutC-7830-1 - On-Call Maintenance/Repair Services Agreement for As-Needed Reservoir ServicesON-CALL MAINTENANCE/REPAIR SERVICES AGREEMENT
WITH POTABLE DIVERS, INC. FOR
AS -NEEDED RESERVOIR SERVICES
THIS ON-CALL MAINTENANCE/REPAIR SERVICES AGREEMENT
("Agreement') is made and entered into as of this 4th day of February, 2020 ("Effective
Date"), by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), and POTABLE DIVERS, INC., a Utah Corporation
("Contractor"), whose address is P.O. Box 474, Vernal, Utah, 84078-0474, and is made
with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to perform on-call maintenance and/or repair
services for City ('Project').
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the maintenance and/or repair services described in this
Agreement.
D. Contractor has examined the location of all proposed work, carefully reviewed and
evaluated the specifications set forth by City for the Project, is familiar with all
conditions relevant to the performance of services, and has committed to perform
all work required for the compensation specified in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2025, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Contractor shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work'). Upon written request from the Project Administrator as defined herein,
Contractor shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal'). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
and
2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services
shall be performed to completion in a diligent and timely manner. The failure by
Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal,
if any, or perform the Services in a diligent and timely manner may result in termination
of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein, not later than two (2) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Contractor's control.
3.4 For all time periods not specifically set forth herein, Contractor shall respond
in the most expedient and appropriate manner under the circumstances, by fax, hand -
delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Except as otherwise provided herein, no rate changes shall be made during
the term of this Agreement without the prior written approval of City. Contractor's
compensation for all Services performed in accordance with this Agreement, including all
reimbursable items, shall not exceed One Hundred Twenty Thousand Dollars and
00/100 ($120,000.00), without prior written amendment to the Agreement.
Potable Divers, Inc. Page 2
4.2 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the billing rates set forth in Exhibit B ("Billing Rates") shall
be adjusted in proportion to changes in the Consumer Price Index, subject to the
maximum adjustment set forth below. Such adjustment shall be made by multiplying the
Billing Rates in Exhibit B by a fraction, the numerator of which is the value of the
Consumer Price Index for the calendar month three (3) months preceding the calendar
month for which such adjustment is to be made, and the denominator of which is the value
of the Consumer Price Index for the same calendar month immediately prior to Effective
Date. The Consumer Price Index to be used in such calculation is the "Consumer Price
Index, All Items, 1982-84=100 for All Urban Consumers (CPI -U)", for the Los Angeles -
Riverside -Orange County Metropolitan Area, published by the United States Department
of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial
indices are published, the official index shall be used. If said Consumer Price Index is no
longer published at the adjustment date, it shall be constructed by conversion tables
included in such new index. In no event, however, shall the amount payable under this
Agreement be reduced below the Billing Rates in effect immediately preceding such
adjustment. The maximum adjustment increase to the Billing Rates, for any year where
an adjustment is made pursuant to this Section, shall not exceed the Consumer Price
Index or 2.0% of the Billing Rates in effect immediately preceding such adjustment,
whichever is less.
4.3 Contractor shall submit monthly invoices to City describing the Work
performed the preceding month. Contractor's bills shall include the name and/or
classification of employee who performed the Work, a brief description of the Services
performed and/or the specific task in the Scope of Services to which it relates, the date
the Services were performed, the number of hours spent on all Work billed on an hourly
basis, and a description of any reimbursable expenditures. City shall pay Contractor no
later than thirty (30) calendar days after approval of the monthly invoice by City staff.
4.4 City shall reimburse Contractor only for those costs or expenses specifically
identified in Exhibit B to this Agreement and the Letter Proposal, or specifically approved
in writing in advance by City.
4.5 Contractor shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with Exhibit B
and the Letter Proposal.
5. PROJECT MANAGER
5.1 Contractor shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated David Harvey to be its
Project Manager. Contractor shall not remove or reassign the Project Manager or any
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personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Contractor, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. City's Water
Production Supervisor or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Contractor's Work schedule.
8. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
8.1 Contractor shall use only the standard materials described in Exhibit A in
performing Services under this Agreement. Any deviation from the materials described
in Exhibit A shall not be installed or utilized unless approved in advance and in writing by
the Project Administrator.
8.2 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
the Services required by this Agreement, and that it will perform all Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances. All Services shall be performed by qualified and
experienced personnel who are not employed by City. By delivery of completed Work,
Contractor certifies that the Work conforms to the requirements of this Agreement, all
applicable federal, state and local laws and legally recognized professional standards.
8.3 Contractor represents and warrants to City that it has, shall obtain and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
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lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay orfaulty performance by City,
contractors, or governmental agencies.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or damage to any of the materials or other things
used or employed in performing the Project or for injury to or death of any person as a
result of Contractor's performance of the Services required hereunder; or for damage to
property from any cause arising from the performance of the Project by Contractor, or its
subcontractors, or its workers, or anyone employed by either of them.
9.2 Contractor shall be responsible for any liability imposed by law and for
injuries to or death of any person or damage to property resulting from defects,
obstructions or from any cause arising from Contractor's Work on the Project, or the Work
of any subcontractor or supplier selected by Contractor.
9.3 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable or any or all of them).
9.4 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Contractor.
9.5 Contractor shall perform all Work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original condition
and former usefulness as soon as possible, and to protect public and private property.
Contractor shall be liable for any private or public property damaged during the
performance of the Work by Contractor or its agents.
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9.6 To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Agreement as shall be considered necessary by City may be
retained by it until disposition has been made of such suits or claims for damages as
aforesaid.
9.7 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
status or other right of employment shall accrue to Contractor or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or any of
Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing the Work,
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with Contractor on the Project.
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
1 11
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of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. BONDING
15.1 For any Letter Proposal accepted by City of over Twenty Five Thousand
Dollars and 00/100 ($25,000.00), Contractor shall obtain, provide and maintain at its own
expense during the term of this Agreement: (1) a Labor and Materials Payment Bond in
the amount of one hundred percent (100%) of the total amount to be paid Contractor as
set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), and in the form attached hereto as Exhibit D which is
incorporated herein by this reference; and (2) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid Contractor as set forth in
any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100
($25,000.00), and in the form attached hereto as Exhibit E which is incorporated herein
by this reference.
15.2 The Labor and Materials Payment Bond and Faithful Performance Bond
shall be issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, (2)
listed as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class
VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -
Casualty.
15.3 Contractor shall deliver, concurrently with City's approval of any Letter
Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000.00), the Labor and
Materials Payment Bond and Faithful Performance Bond, a certified copy of the
"Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner,
which authorizes the Insurer or Surety to transact surety insurance in the State of
California.
16. PREVAILING WAGES
16.1 Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages including legal
holidays and overtime Work for each craft or type of workman needed to execute the
Work contemplated under the Agreement shall be paid to all workmen employed on the
Work to be done according to the Agreement by the Contractor and any subcontractor.
In accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the Work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and requesting
one from the Department of Industrial Relations. The Contractor is required to obtain the
wage determinations from the Department of Industrial Relations and post at the job site
the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any
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subcontractor under him/her to comply with all State of California labor laws, rules and
regulations and the parties agree that the City shall not be liable for any violation thereof.
16.2 Unless otherwise exempt by law, Contractor warrants that no contractor or
subcontractor was listed on the bid proposal for the Services that it is not currently
registered and qualified to perform public work. Contractor further warrants that it is
currently registered and qualified to perform "public work" pursuant to California Labor
Code section 1725.5 or any successor statute thereto and that no contractor or
subcontractor will engage in the performance of the Services unless currently registered
and qualified to perform public work.
17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or cotenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
18. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. City is an intended
beneficiary of any Work performed by the subcontractor for purposes of establishing a
duty of care between the subcontractor and City. Except as specifically authorized herein,
the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
19. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Contractor or any
other party. Contractor shall, at Contractor's expense, provide such Documents to City
upon prior written request.
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20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
21. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Contractor
under this Agreement. All such records and invoices shall be clearly identifiable.
Contractor shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Contractor shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Contractor
under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her designee with respect to such disputed
sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other contractors in connection with the Project
24. CONFLICTS OF INTEREST
24.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act') and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Contractor
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Contractor shall
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indemnify and hold harmless City for any and all claims for damages resulting from
Contractor's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Attn: Utilities Manager
Utilities Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: David Harvey
Potable Divers, Inc.
P.O. Box 474
Vernal, Utah 84078-0474
26. CLAIMS
26.1 Unless a shorter time is specified elsewhere in this Agreement, before
making its final request for payment under this Agreement, Contractor shall submit to City,
in writing, all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
26.2 To the extent that Contractor's claim is a "Claim" as defined in Public
Contract Code section 9204 or any successor statute thereto, the Parties agree to follow
the dispute resolution process set forth therein. Any part of such "Claim" remaining in
dispute after completion of the dispute resolution process provided for in Public Contract
Code section 9204 or any successor statute thereto shall be subject to the Government
Claims Act requirements requiring Contractor/Consultant to file a claim in strict
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conformance with the Government Claims Act. To the extent that Contractor's claim is
not a "Claim" as defined in Public Contract Code section 9204 or any successor statute
thereto, Contractor shall be required to file such claim with the City in strict conformance
with the Government Claims Act (Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination, Contractor
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. LABOR
28.1 Contractor shall conform with all applicable provisions of state and federal
law including, but not limited to, applicable provisions of the federal Fair Labor Standards
Act ("FLSA") (29 USCA § 201, et seq.).
28.2 Whenever Contractor has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of this Agreement,
Contractor shall immediately give written notice to City, and provide all relevant
information.
28.3 Contractor represents that all persons working under this Agreement are
verified to be U.S. citizens or persons legally authorized to work in the United States.
28.4 To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees from loss or damage, including but not limited to attorneys'
fees, and other costs of defense by reason of actual or alleged violations of any applicable
federal, state and local labor laws or law, rules, and/or regulations. This obligation shall
survive the expiration and/or termination of the Agreement.
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29. STANDARD PROVISIONS
29.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference.
29.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
29.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religious creed, color, national origin,
Potable Divers, Inc. Page 12
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: ?,C( 1 ZOZO Date: 62
By: J -k By:
¢or: Aaron C. Harp qao Gr . Leung
City Attorney p\alb Ci anager
C�
ATTEST: CONTRACTOR: POTABLE DIVERS,
Date: INC., a Utah Corporation
Date:
By. - l -- Q e�
Leilani I. Brown avid Harvey
City Clerk Chief Executive Officer
Date: p 2c)
By:
Jen i r Harvey
Ser ary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Exhibit D — Labor and Materials Payment Bond
Exhibit E — Faithful Performance Bond
Potable Divers, Inc. Page 14
EXHIBIT A
SCOPE OF SERVICES
Potable Divers, Inc. Page A-1
Key Personnel
In accordance with Federal OSHA regulations, Potable Divers Inc. utilizes a 3 -man
dive team to conduct all diving operations. The 3 -man team consists of a Dive
supervisor, lead diver, and a tender/diver, all in current standing with the ADC.
The three divers assigned to this contract (listed below) each have more than 10 than
years of experience, and a combined total of more than 35 years. All divers are
ACDE certified having graduated from an accredited school with a minimum of 700
hours of training, in addition to first aid, CPR, oxygen administration. Divers are
certified in ASNT NDT, and with the American Concrete Institute. Divers are
required to have these certifications with them at all times while on the job site. All
our services are provided with unbroken color video, digital photos, and
uninterrupted voice communications.
Potable Divers will use no Sub Contractors for this work.
The following three man Dive team will be assigned to this project.
David Harvey Project Manager / Diving Supervisor
17 Years specifically in Potable Water Diving Services
ASNT, NDT, Industrial Coatings Consultant, Certs, Etc..
Andy Johnson Lead Diver
11 years as lead diver for Potable Divers Inc and 10 years in
Potable Water Services
ASNT, , NDT, American Concrete Institution, Certs, Etc..
Austin Stoddard Diver / Trainer
2 Years diving experience in Potable Water Services
including work for the City of Newport Beach.
ASNT, NDT, Certs, Etc..
Point of Contact:
David Harvey, Diving Supervisor/Project Manager, will be assigned as the contract
liaison for the City of Newport Beach. David will be the primary contact and
the only contact needed for the city to request proposals, services, prices,
repairs, scheduling, and any other services needed.
David Harvey
Potable Divers Inc.
PO Box 474
Vernal, UT 84078-0474
Office 866-789-3483
Cell 602-920-9438
Fax 866-913-4905
E-mail david@potabledivers.com
`Paib1edin m cityofnewportbmchRFP 19-75
Scope of Work:
PROCEDURES FOR PERFORMING SERVICES
PROJECT APPROACH
As -needed Reservoir Services requests received by Potable Divers are immediately
put on the schedule for the next available opening, once all the paper work requested
by the City of Newport Beach is completed. The dive team selected for this contract
covers the state of California and typically can service all incoming requests in less
than a month and if emergency response is needed we can be anywhere in the 12
western states in 24 hours or less.
Consultant shall provide any of the services below for City:
The inspection of each tank will include the extent of coating and materials
deterioration, area by area within each structure. The principle areas of consideration
are the roof, the exterior wall and appurtenances, the interior underside of the roof
and supporting columns and the non -immersed areas of the interior wall and
appurtenances. To perform a complete inspection of the floor, cleaning of the
sediment accumulation up to 1" in depth from the tank floor is highly recommended.
Video documentation of the floor will be obtained prior to cleaning, which will
indicate the amount of silt and sediment present. During the time of inspection, Water
personnel shall raise and maintain water level to near overflow. This allows the
divers headroom, yet enables easy access to document the interior roof, columns, etc.
Interior inspection, both over and underwater, will be conducted to determine coating
condition of the tanks' interior walls, roof beams, columns, ladder, interior coating,
depth monitoring equipment, cathodic protection equipment, etc.
Tank interior air sampling shall be performed and PDI confined space entry permit(s)
will be completed prior to diver entry to the tank. Diver(s) shall be decontaminated
per ANSI/AWWA C652-02 prior to entry.
A hi -resolution color video camera will be attached to the divers helmet and
monitored at the surface dive station by the dive supervisor and, if desired, by
representatives of the Water company. Direct communications with the diver will be
maintained at all times.
Potable Divers Inc will offer the digital 16 megapixel color still -photographs and
videos to the City using digital storage media in any format needed by the City.
A typed report will be generated on the team's findings referencing video related
inspection information to location and an inspection overview. The report will
include the existing condition of the interior and exterior of each reservoir and
provide recommendations for repairs, if necessary and an evaluation of ongoing
maintenance needs.
`Poib1e d11ivncityafnewportbeachRFP 19-75
DOCUMENTATION OF STORAGE TANKS, PROPERTY, AND CATHODIC
PROTECTION
All findings found are documented before, after, and during cleaning and inspection
on the video report as well as still photos. Items to be documented will be any area
of concern, corrosion, holidays, cracking, blistering, pitting, inconsistency, all
tank/reservoir plumbing, fittings, joints, seams, columns, panels, interior coating,
floor plates/bases and so forth. A video in a format chosen by the client, will be
provided as part of the report along with still photos, and a computer generated report
of all findings, along with the AW WA checklists.
Video and audio will be live while the diver is in the water this is for the divers'
safety as well as the clients' convenience.
Video camera is mounted to the divers' helmet, to provide uninterrupted video for the
topside personnel. The video camera has high resolution and fixed focus technology
with lighting. Digital photos are taken with an underwater Nikon camera with
independent flash. Inspection will begin at the 12:00 o'clock position and will
proceed with the inspection in a clockwise manner.
EQUIPMENT
VACUUM -CLEANING HEAD
For the last few years Potable Divers Inc. has put a lot of time and research into our
underwater vacuum system, saving our clients more time, water, and money. Our
system being made of glass gives us several unique capabilities, glass can be
decontaminated more efficiently than a porous metal, glass also allows our clients
and our divers to observe both inside and outside the vacuum system, thus assuring
the floor is completely cleaned during the "scrubbing" process with the brush. The
"scrubbing" process is the most critical part of the cleaning, as experience has proven
the vacuum system must be able to provide adequate power for the scrubbing
process. Suction driven and in some cases motor driven vacuum heads do not provide
adequate power when introduced to heavier sediments such as mud, sand, or clay.
Even small amounts of silt and small debris (such as rocks) can cause the brush to
slow down not providing the vigorous scrubbing needed to remove the bacteria bio
film that lives under the sediment. Potable Divers' proprietary vacuum has the
capability to be controlled by the diver and/or top side personnel to increase the
power of the vacuum -cleaning head. To make sure the brushing is adequate, it is
observed through the glass housing by our divers as well as our clients, and can be
adjusted accordingly. The brush can be controlled to revolve from 50 revolutions per
minute to 5000 revolutions per minute. The proprietary vacuum system was designed
to create no turbidity, as all sediment is enclosed in the glass housing and removed
with high power suction as it is vigorously brushed.
DIVERS EQUIPMENT
All equipment and clothing used is dedicated to potable water.
A. Equipment and clothing used is stored in a manner that prevents both
chemical and bacteriological contamination.
B. Only dry diving helmets will be used.
C. Only vulcanized rubber dry suits will be used, free from tears, scrapes,
and un -repaired areas of other imperfections that may impair the integrity
"O°"`&" cityofnewportbeachUP 19-75
of the suit. Dry suits shall be variable volume with push button air
inflation and shall have automatic over-inflation/exhaust valve.
D. Only surface supplied air equipment shall be used, with a secondary bottle
back up with 8 hour minimum storage capacity. Accompanied by a diver
carried back up bottle.
E. Scuba equipment also consists of dry suit and a full face mask, allowing
the diver to talk with other divers and narrate video with the wireless
1080p camera for inspection.
2. Disinfection of all Equipment
A. All equipment used will be disinfected using a minimum of 200ppm+
Chlorine immediately prior to entering system
B. Method of equipment disinfection will be spraying with and/or scrubbing
disinfection solution.
C. The disinfection solution shall have a minimum of 200mg/L free available
chlorine. The strength of the disinfectant solution shall be verified with a
HACH model CN21P 10-200 mg/L Chlorine test kit.
3. Post Dive Procedure Disinfection
After all personnel and equipment have been removed from the water storage
tank the dive team shall test the water for total chlorine content utilizing a HACH
chlorine test kit to determine the post dive total chlorine level. These finding will
be reported to the Contract Liaison.
VIDEO AND VOICE COMMUNICATION EQUIPMENT
1. Communications
A. Communications between divers and tender shall be by full time four
way conference hardwired systems with two way push to talk hardwire
system as a backup.
Never will a push to talk be used as a primary communications system.
2. Video Recorded on DVD HDD
A. Uninterrupted video will ensure the quality of the water and cleaning
procedure is satisfactory.
B. Helmet mounted video Cameras with adequate lighting have infinite
focus as to show the entire view of the tank as to make sure all areas are
cleaned.
C. Video is high resolution color video with real time imprint and time log
so areas of concern are easily identified.
D. Video is narrated live by divers, on-site support personnel, or by client
personnel at time video is recorded.
E. Still color photos will have time stamp on them as to refer to the location
on the video.
c MAIe d11im cityofnewportbe chRFP 19-75
3. Dive Hat
A. Only on demand breathing hats mated to the dry suit with positive
pressure will be used. This is to reduce background noise caused from
free flow hats and to ensure diver safety.
B. Only surface supplied air equipment shall be used, with bottle back up
with an 8 hour minimum storage capacity.
C. Underwater pneumatic and hydraulics for cutting and installing pipes
valves, gates, along with lift bags capable of lifting 10,000 lbs
underwater.
REPAIR, UNDERWATER COATING PROCEDURES AND MATERIALS
Potable Divers Underwater coating procedures are performed in accordance with
SSPC-SP-1 being wire brushed with a pneumatic die grinder down to white metal.
Special consideration for underwater environments and the surrounding intact coating
shall be feathered and abraded to provide an anchor profile for the epoxy. The epoxy
is applied in accordance with the manufactures specifications being applied by brush
and or roller techniques at 8-10 mils thick.
Epoxy Specifications
AquataPoxyTm A-6 and AquataPoxy A-6 Thick are solvent -free, 100% solids, corrosion
resistant epoxy coatings that can be applied to dry or wet surfaces. Formulated for broad
range corrosion protection as well as certified safe for potable water (NSF/ANSI Std. 61)
NSF: AquataPoxy A-6 and A-6 Thick are certified to the requirements of NSF/ANSI Standard
61 -Drinking Water System Components.
USDA: AquataPoxy A-6 and A-6 Thick are acceptable as coatings for application to surfaces
where there is a possibility of incidental food contact.
AWWA: AquataPoxy A-6 and A-6 Thick meet the physical and performance requirements of
ANSI/AWWA C 210-92, "Liquid- Epoxy Coating Systems for the Interior and Exterior of Steel
Water Pipelines".
Repair of Concrete structures
A Hydro -Active grout (hydrophobic polyurethane) is injected into cracks and joints,
subject to movement. When the grout comes in contact with water it forms a flexible
gasket or plug made of a closed cell foam that is unaffected by corrosive
environments. Being NSF 61 approved it has many advantages in drinking water
tanks.
Contains no volatile solvents
Free foam expansion up to 10 times its liquid volume
Single Component
Low viscosity permits injection into narrow to hair line cracks
Excellent elongation creates tight seal in moving cracks
cP P.N. dM" cityofnewpor[beachRH 19-75
SAFETY
Safety Program:
Included for your review is a very brief summary of our safety policies and practices
manual, this is due to the size and volume of the 300 plus page manual (separate
attachment) . A complete manual is available at each job site for the clients review.
The Policy of Potable Divers Inc, herein after called the "Company", is to maintain
the highest standards for the Safety and Health of all the Company employees and to
conduct all activities with appropriate safeguards against exposure of the general
public to risks against their safety and health. In order to meet this criterion the
Company provides and maintains safe and healthy working conditions, equipment,
and safe systems of work for all its employees, and to provide such information,
training, and supervision, as they need for this purpose.
The Company accepts its obligations to seek to reduce the incidence of accidents,
dangerous occurrences and hazards to the safety and health of its employees and
other people who may be affected by our activities.
The Company requires that all employees shall regard safe working as a prime
objective and take all possible steps to achieve it. Safety is the condition for the
protection of life, property, and/or equipment against failure, breakage, or accidental
loss. To aid in achieving this objective, every person involved must realize the
potential consequences of accidents and comply fully with the Company Safety
Procedures and applicable legislation.
In putting this Safety Policy into practice, the Safety Group is authorized to require
the cessation of work where they deem Safety to have been compromised.
Potable Divers Inc is totally committed to SAFETY; it is the primary priority of the
Company and shall not be compromised. The management and staff of the
Company have adopted a "multi -faceted approach" to safety management in order to
provide and maintain a safe and healthy working environment on all operations,
while ensuring the objectives of the operation are achieved efficiently and with a
minimum of risk to personnel.
In order to implement these goals, various policies, procedures, and guidance are
promulgated in Company manuals. It is the intent that the Diving Operations
Manuals will provide Codes of Practice for all Potable Divers Inc diving operations
and it is a mandatory requirement that all personnel involved with diving operations
familiarize themselves with the instructions contained therein.
Where National or Local Government legislation exists applicable to diving
operations, it is intended that the procedures and practices quoted in the Diving
Operations Manual will take precedence to the Government legislation, only in
circumstances where the company policy is more stringent.
The wide scope of diving operations and variety of equipment used inevitably
means those specific instructions for every situation and circumstance is not
possible. These instructions, however, form the basis from which every operation
will develop its individual procedures applicable to that operation.
`.,W,^""'°" cityofnewportbeachRR 19-75
Supervisors are directly responsible for the implementation of these policies and
are to ensure that no unjustified deviations occur.
All personnel working on Potable Divers Inc diving operations will, in
addition to any statutory obligation, comply with these policies
except where authorized dispensation has been given.
No person may willfully, or without reasonable cause, do anything liable to
endanger the safety of themselves, other personnel, plant, or equipment.
Diving is a potentially hazardous occupation, which requires constant alertness,
discipline, and dedication to ensure the safety of all concerned.
[ THINK SAFE ] [ WORK SAFE ] [ BE SAFE ]
Any persons discovering a hazard or equipment malfunction at their work place must
report the fact immediately to their supervisor, who will report it to the Safety
Department if necessary.
The complete Company Safety Manual / Standards and Operating Procedures Manual has been
provided to City.
ro'Wa d... — dtyofnewportbeachRFP I9-75
RESERVOIR MAP AND DETAILS
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�Em Disclaimer: Every reasonable effort has been made to assure the acwmcy of the data
e Newport 0 4,000 8,000 provided, hoKever, The City of Newport Beach and He employees and
U i Beach agents disdam ary and all raspom bldy from or relating to any results
Feet obtained In as use.
Vr .cant GIS Imagery: 2003-2013 photos provided by Eagle Imaging vmv.eagleaenal.com
W.=I5
RESERVOIR DETAILS
Reservoir
Location
Size
Depth
16th Street
949 W. 16th Street
3m gal
27'
Newport Beach
Zone 4
Spyglass Hill Reservoir Park
1.5m gal
28'
72 Muir Beach Circle
Corona del Mar
Big Canyon Reservoir
3300 Pacific View Drive
197.7m gal
38'
(BCR)
Newport Beach
16TH STREET RESERVOIR
135
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BIG CANYON RESERVOIR ("BCR")
EXHIBIT B
SCHEDULE OF BILLING RATES
Potable Divers, Inc. Page B-1
SCHEDULE OF BILLING RATES
'Big Canyon Reservoirs cleaning cost should be priced by day (8 hour day), not per occurrence.
RESERVOIR INSPECTION & CLEANING SERVICES
RESERVOIR
LOCATION
INSPECTION COST PER CLEANING SERVICES COST
OCCURRENCE PER OCCURRENCE`
TOTAL PRICE PER
OCCURRENCE'
Big Canyon
See Ma
$2600 /day $3500 /day
$6100 /day
16'" Street
See Map
$1,000 $1,000
$2,000
Zone
See Ma
$900 $1,000
$1,900
Repair/Emergency Services
Hourl Rate
$400 Minimum Hours
8
Emergency Hourly Rate (Less than 24-hour notice) $500 Minimum Hours
8
HolidayRate
$645 IMinimurn Hours
8
'Big Canyon Reservoirs cleaning cost should be priced by day (8 hour day), not per occurrence.
EXHIBIT C
INSURANCE REQUIREMENTS — MAINTENANCE/REPAIR/JANITORIAL SERVICES
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Potable Divers, Inc. Page C-1
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Contractor shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
Potable Divers, Inc. Page C-2
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Aqreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
Potable Divers, Inc. Page C-3
G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
I. Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Potable Divers, Inc. Page C-4
EXHIBIT D
CITY OF NEWPORT BEACH
BOND NO.
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to
hereinafter designated as the "Principal," an agreement for
maintenance and/or repair services, in the City of Newport Beach, in strict conformity with
the Agreement on file with the office of the City Clerk of the City of Newport Beach, which
is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Agreement and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the Work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
NOW, THEREFORE, We the undersigned Principal, and,
duly authorized to transact business under the laws of the State of California, as Surety,
(referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach,
in the sum of Dollars ( ),
lawful money of the United States of America, said sum being equal to 100% of the
amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars
and 00/100 ($25,000.00), payable by the City of Newport Beach under the terms of the
Agreement; for which payment well and truly to be made, we bind ourselves, our heirs,
executors and administrators, successors, or assigns, jointly and severally, firmly by
these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required
by the provisions of Section 9554 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as
to give a right of action to them or their assigns in any suit brought upon this Bond, as
Potable Divers, Inc. Page D-1
required by and in accordance with the provisions of Sections 9500 et seq. of the Civil
Code of the State of California.
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Agreement or to the Work to
be performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Agreement or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual,
it is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
LIM
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE
ATTACHED
Potable Divers, Inc. Page D-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ) ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
(seal)
County of ) ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Potable Divers, Inc. Page D-3
EXHIBIT E
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ , being at the
rate of $ thousand of the Agreement price.
WHEREAS, the City of Newport Beach, State of California, has awarded to
hereinafter designated as the "Principal," an agreement for
maintenance and/or repair services in the City of Newport Beach, in strict conformity with
the Agreement on file with the office of the City Clerk of the City of Newport Beach, which
is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Agreement and the
terms thereof require the furnishing of a Bond for the faithful performance of the
Agreement.
NOW, THEREFORE, we, the Principal, and
duly authorized to
transact business under the laws of the State of California as Surety (hereinafter
"Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of
( ) lawful
money of the United States of America, said sum being equal to 100% of the amount of
any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100
($25,000.00), to be paid to the City of Newport Beach, its successors, and assigns; for
which payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the Work, covenants, conditions, and
agreements in the Agreement and any alteration thereof made as therein provided on its
part, to be kept and performed at the time and in the manner therein specified, and in all
respects according to its true intent and meaning, or fails to indemnify, defend, and save
harmless the City of Newport Beach, its officers, employees and agents, as therein
stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the
sum specified in this Bond; otherwise this obligation shall become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by City, only in the
event City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Agreement or to the Work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
Potable Divers, Inc. Page E-1
notice of any such change, extension of time, alterations or additions of the Agreement
or to the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of , 20
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Aaron C. Harp
City Attorney
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Potable Divers, Inc. Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of }ss.
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ) ss.
On 20 before me,
Notary Public, personally appeared
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
Potable Divers, Inc. Page E-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 2/26/2020
Department: Utilities
Dept./Contact Received From: Josh Rosenbaum
Sent to: Marissa By: Josh
Company/Person required to have certificate:
Type of contract:
I.
H.
Potable Waters
Maintenance/Repair Agreement
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 2/17/2020-2/17/2021
A. INSURANCE COMPANY: Evanston Insurance Co. NAIC#35378
B. AM BEST RATING (A-: VII or greater): A : XV
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
D. LIMITS (Must be $1 M or greater): What is limit provided?
E. ADDITIONAL INSURED ENDORSEMENT—please attach
F. ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
G. PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
H. PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
0 Yes ❑ No
M occur / $2M agg
0 Yes ❑ No
❑/ Yes ❑ No
Z Yes ❑ No
❑✓ N/A [:]Yes ❑ No
AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 3/7/2020-317/2021
A. INSURANCE COMPANY: Hartford Accident & Indemnity NAIC#22357
B. AM BEST RATING (A-: VII or greater) A+: VX
C. ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided? $1M
E. PRIMARY & NON-CONTRIBUTORY WORDING
ENDORSEMENT - please attach
F. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A
G. ADDITIONAL INSURED ENDORSEMENT — please attach
H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its
Q Yes ❑ No
Yes ❑ No
❑ Yes ✓❑ No
0 Yes ❑ No
officers, officials, employees and volunteers): Is it included? 0 Yes ❑ No
I. SIGNED AUTOMOBILE INSURANCE EXEMPTION FORM: ❑N/A F] Yes ❑ No
III.
WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 2/2/2020-2/2/2021
A. INSURANCE COMPANY: State Compensation Insurance Fund
B. AM BEST RATING (A-: VII or greater): not rated
C. ADMITTED Company (Must be California Admitted):
❑ Yes 0 No
D. WORKERS' COMPENSATION LIMIT: Statutory
❑✓ Yes ❑ No
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
$1M
F. WAIVER OF SUBROGATION (To include): Is it included?
❑✓ Yes ❑ No
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
❑✓ N/A ❑ Yes ❑ No
ADDITIONAL COVERAGES THAT MAYBE REQUIRED
❑
PROFESSIONAL LIABILITY
EFFECTIVE/EXPIRATION DATE:
A. INSURANCE COMPANY:
❑
POLLUTION LIABILITY
EFFECTIVE/EXPIRATION DATE:
A. INSURANCE COMPANY:
❑
BUILDER'S RISK
EFFECTIVE/EXPIRATION DATE:
A. INSURANCE COMPANY:
EFFECTIVE/EXPIRATION DATE:
A. INSURANCE COMPANY:
Workers' Compensation: State Fund approved
Approved:
Risk Management
3/5/2020
Date