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HomeMy WebLinkAboutC-4571 - M/RSA for Sewer Line Root ControlAMENDMENT NO. ONE TO MAINTENANCE/REPAIR SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR SEWER ROOT CONTROL THIS AMENDMENT NO. ONE TO MAINTENANCE/REPAIR SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 11th day of April, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and Duke's Root Control, Inc., a New York Corporation ("Contractor'), whose address is 1020 Hiawatha Blvd W, Syracuse, NY 13204, and is made with reference to the following: RECITALS A. On July 27, 2015, City and Contractor entered into a Maintenance/Repair Services Agreement ("Agreement") for Contractor to perform maintenance and/or repair services for the City ("Project"). B. Since entering into the Agreement, the volume of work needed by the City covered by the Agreement is higher than originally anticipated. Such work includes performing maintenance and/or repair services for the City. C. The parties desire to enter into this Amendment No. One to increase the total compensation for the Agreement to account for the increased volume of work not anticipated at the time of executing the Agreement and to update the Contractor's contact information for notices. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONTRACTOR Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "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 Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Two Hundred Thirty Six Thousand One Hundred Fifty One Dollars and 00/100 ($236,151.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Contractor's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subcontractor fees, in an amount not to exceed One Hundred Sixteen Thousand One Hundred Fifty One Dollars and 00/100 ($116,151.00). 2. NOTICES Section 24.3 of the Agreement is amended in its entirety and replaced with the following: "All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Braden L. Boyko Duke's Root Control, Inc. 1020 Hiawatha Blvd W Syracuse, NY 13204" 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Duke's Root Control, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a CaliforniaXi .pal orporat Date: 3 Date: By: (oY By: Aaron C. Harp evin Muldoon ' City Attorney ATTEST: Date:: 4 jet4n— Leilani Mayor CONTRACTOR: Duke's Root Control, Inc., a New York corporation Date: By: Braden L. Boyko Vice President Date: ))!%1'J By: Constance Wozniak Secretary [END OF SIGNATURES] Duke's Root Control, Inc. Page 3 April 11, 2017 Agenda Item No. 11 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: George Murdoch, Municipal Operations -Utilities Director — 949-718- 3401, gmurdoch@newportbeachca.gov PREPARED BY: Joshua Rosenbaum, Senior Management Analyst — jrosenbaum@newportbeachca.gov PHONE: 949-644-3057 TITLE: Amendment No. One to Maintenance/Repair Services Agreement with Duke's Root Control, Inc. for Sewer Line Root Control Services ABSTRACT: The City maintains approximately 200 miles of pipeline that convey wastewater from our residents and businesses to the Orange County Sanitation District for treatment. During routine cleaning and videotaping of our pipelines, tree roots are often identified as potential blockages. To remove tree roots, the City contracts with Dukes Root Control, Inc. who apply an EPA - registered product that kills tree roots without harming above ground vegetation. This effort along with the City's root cutting process minimizes sewer blockages that could result in customer flooding or spills. The amount of this annual service varies depending on what has been identified. The City previously had two contracts for this type of service and now uses one. The not -to -exceed amount for this contract is insufficient for the amount of work that is required. Staff is requesting an increase in the limit for the remainder of the contract term, which expires July 1, 2018. There is sufficient funding in the operations budget to cover these costs. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQ) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Approve Amendment No. One to the Maintenance/Repair Services Agreement with Duke's Root Control, Inc., for sewer root control services to increase the total not -to - exceed amount to $236,151 for the remainder of the term of the agreement, and authorize the Mayor and City Clerk to execute the amendment. Amendment No. One to Maintenance/Repair Services Agreement with Duke's Root Control, Inc. April 11, 2017 Page 2 FUNDING REQUIREMENTS: The current FY2016-17 budget has sufficient funding for sewer root control services in the Wastewater account 7119061-851054 Tree Root Foaming. Additionally, the proposed FY2017-18 budget will have sufficient funding in the same account to cover sewer root control services next fiscal year. DISCUSSION: Intrusion of roots into sewer main lines is probably the most destructive problem encountered in the operation of the wastewater collection system. Root intrusion in lines often leads to the collection of grease and debris. If not managed properly, root intrusion can lead to line stoppages and sanitary sewer overflows. Staff utilizes video reports, maintenance history, and assessments of previous stoppages and overflows to more effectively identify areas of root infiltration in order to concentrate root cleaning efforts. In May 2015, the Municipal Operations Department issued a Request for Proposals (RFP) and received two proposals. Following a panel evaluation and cost analysis, Duke's Root Control Inc., was evaluated to be the highest rated proposer and was awarded a Maintenance/Repair Services Agreement. The current Agreement for sewer root control services expires July 1, 2018. Duke's applies EPA -registered products that kill tree roots without harming above ground vegetation. The material is injected as foam, from manhole -to -manhole, killing all roots on contact and also inhibiting re -growth for three to five years on repeat applications. If a treated sewer plugs up due to tree roots during the guarantee period, Duke's will re -treat that section, at their expense, or remit to the City 100% of the payment received to treat that section of sewer. Initially in 2015, the Maintenance/Repair Services Agreement for sewer root control services was for three years with a total amount not to exceed $120,000. The City previously had two contract firms that could provide this service; however, during the execution of the current agreement it was decided to use the lower cost firm only and not continue with two. In 2016, the City identified 93,933 feet or nearly 18 miles of sewer mains that required root removal. The annual cost to root foam is approximately $80,000. For a three-year service with only one vendor, the total cost is estimated to be $240,000. Duke's Root Control has agreed to maintain their current service rates; therefore, staff is requesting to increase the not -to -exceed amount of the contract to $236,151, with no change to the expiration date. There is sufficient budget dedicated to root foaming and these costs will be included in subsequent future budgets. 11-2 Amendment No. One to Maintenance/Repair Services Agreement with Duke's Root Control, Inc. April 11, 2017 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Amendment No. One to Maintenance/Repair Services Agreement with Duke's Root Control, Inc. for Sewer Line Root Control Services. 11-3 ATTACHMENT A AMENDMENT NO. ONE TO MAINTENANCE/REPAIR SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR SEWER ROOT CONTROL THIS AMENDMENT NO. ONE TO MAINTENANCE/REPAIR SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 11th day of April, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and Duke's Root Control, Inc., a New York Corporation ("Contractor"), whose address is 1020 Hiawatha Blvd W, Syracuse, NY 13204, and is made with reference to the following: RECITALS A. On July 27, 2015, City and Contractor entered into a Maintenance/Repair Services Agreement ("Agreement") for Contractor to perform maintenance and/or repair services for the City ("Project"). B. Since entering into the Agreement, the volume of work needed by the City covered by the Agreement is higher than originally anticipated. Such work includes performing maintenance and/or repair services for the City. C. The parties desire to enter into this Amendment No. One to increase the total compensation for the Agreement to account for the increased volume of work not anticipated at the time of executing the Agreement and to update the Contractor's contact information for notices. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONTRACTOR Section 4.1 of the Agreement is amended in its entirety and replaced with the following: 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 Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Two Hundred Thirty Six Thousand One Hundred Fifty One Dollars and 00/100 ($236,151.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Contractor's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subcontractor fees, in an amount not to exceed One Hundred Sixteen Thousand One Hundred Fifty One Dollars and 00/100 ($116,151.00). 11-4 2. NOTICES Section 24.3 of the Agreement is following: "All notices, demands, requests addressed to Contractor at: Attn: Braden L. Boyko Duke's Root Control, Inc. 1020 Hiawatha Blvd W Syracuse, NY 13204" 3. INTEGRATED CONTRACT amended in its entirety and replaced with the or approvals from City to Contractor shall be Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Duke's Root Control, Inc. page 2 11.5 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORI)IEY'S OFFICE Date: V 31/17 ATTEST: Date: By: Leilani 1. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Kevin Muldoon Mayor CONTRACTOR: Duke's Root Control, Inc,, a New York corporation Date: BY: Braden L. Boyko Vice President Date: By: Constance Wozniak Secretary [END OF SIGNATURES] Duke's Root Control, Inc. Page 3 11-6 MAINTENANCE/REPAIR SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC FOR SEWER ROOT CONTROL THIS MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement") is made and entered into as of this 27th day of July, 2015 ("Effective Date'), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and Duke's Root Control, INC, a New York Corporation ("Contractor'), whose address is 1020 Hiawatha Blvd W, Syracuse, NY 13204, 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 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: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on July 1, 2018, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Contractor shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). As a material inducement to City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest industry standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest industry standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 2.2 Contractor shall perform all Work required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 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. 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, 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 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. 4.2 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 Duke's Root Control, INC Page 2 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. 4.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement, or specifically approved in writing in advance by City. 4.4 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. 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 Tom Edwards to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any 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 Municipal Operations Department. City's Operations Support Superintendent 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 Duke's Root Control, INC Page 3 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 highest industry standards. 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 and all applicable federal, state and local laws and the industry standard. 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, 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 or faulty 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, Duke's Root Control, INC Page 4 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. 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. Duke's Root Control, INC Page 5 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 of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PREVAILING WAGES 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 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. Duke's Root Control, INC Page 6 16. 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. 17. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. 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. 18. 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. 19. 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. 20. 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) Duke's Root Control, INC Page 7 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. 21. 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. 22. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the Project. 23. CONFLICTS OF INTEREST 23.1 Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 23.2 If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 24. NOTICES 24.1 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. Duke's Root Control, INC Page 8 24.2 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Operations Support Superintendent Municipal Operations Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 24.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: William Anderson Duke's Root Control, INC 1020 Hiawatha Blvd W Syracuse, NY 13204 25. CLAIMS 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. TERMINATION 26.1 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. 26.2 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 Duke's Root Control, INC Page 9 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. 27. LABOR 27.1 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.). 27.2 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. 27.3 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. 27.4 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. 28. STANDARD PROVISIONS 28.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 28.2 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. 28.3 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. 28.4 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. Duke's Root Control, INC Page 10 28.5 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. 28.6 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. 28.7 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. 28.8 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. 28.9 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. 28.10 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, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 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. 28.12 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] Duke's Root Control, INC Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RN Y'S OFFICE Date: By: —CD Aaron C. Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: 9 ► mkt I!;� By: Dave Kift City Manager CONTRACTOR: Duke's Root Control, INC, a New York Corporation Date: '7 7-! /!- r- By: AI41 41htM--- By: Leilani I. Brown Mich,41 Hogg City Clerk President Date: By:-... Anderson Vice President [END OF SIGNATURES] Attachments: Exhibit A – Scope of Services Exhibit B – Schedule of Billing Rates Exhibit C – Insurance Requirements Duke's Root Control, INC Page 12 EXHIBIT A SCOPE OF SERVICES DUTIES AND RESPONSIBILITIES INTENT oThe intent of this Request for Proposal is to select and enter into service agreement with the best suited sewer root control proposer. • DESCRIPTION OF PROJECT o Furnish all labor, tools, expendable equipment, materials, transportation services necessary for the sewer root control as described herein including, but not limited to, the following: Inject the product, or foam, into the sewer lines through the sewer manhole that will kill any roots that have infiltrated through the pipes, while not harming the vegetation above. • WORKING HOURS o Normal working hours shall be between the hours of 7:00 a.m. and 4:30 p.m., Monday through Friday. No Saturday or Sunday work is to be scheduled without prior written permission from the City, unless it is an emergency situation. QUALITY OF WORK AND MATERIALS o The Contractor shall perform all Work required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project, including delivery, storage and handling of products. o All material and equipment furnished by the Contractor shall be high grade, and free from defects and imperfections, unless otherwise hereinafter specified. Workmanship shall be in accord with the best standard practices. Both materials and workmanship shall be subject to the approval of the Project Administrator. o All work shall be performed in accordance with the HIGHEST INDUSTRY STANDARDS, as stated in the specifications described herein. Standards and frequencies may be modified from time to time as deemed necessary by the City for the proper maintenance of the sites. • WORKMANSHIP AND SUPERVISION o Contractor shall designate a Project Manager to serve as the main contact for the Contractor throughout the project. The Project Manager shall have the authority to handle and resolve any contract disputes with the City and be experienced in sewer root control services. o All work shall meet with the approval of the City's designated Project Administrator. Any specific problem area which does not meet the conditions of the specifications set forth herein shall be called to the attention of the Contractor's Project Manager and if not corrected, payment Duke's Root Control, INC Page A-1 to the Contractor will not be made until condition is corrected in a satisfactory manner as set forth in the specifications. • RESPONSIBILITY FOR DAMAGES OR INJURY o Any damage done by Contractor outside the area and scope of the work of the contract shall be repaired or replaced as directed at no additional cost to the City. o 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. o 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). • RECORDS o 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 two (2) years from the date of final payment to Contractor under this Agreement. Duke's Root Control, INC Page A-2 CORRESPONDENCE o All correspondence shall be addressed to Utilities Manager, Municipal Operations Department, City of Newport Beach, and PO Box 1768, Newport Beach, California 92658-8915. SAFETY REQUIREMENTS o All work performed under this contract shall be performed in such a manner as to provide maximum safety to the public and where applicable comply with all safety standards required by CAL -OSHA. The City reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance under this contract. All contractor employees shall have access to a W.A.T.C.H. (Work Area Traffic Control Handbook) at all times. o Contractor's field personnel shall wear easily recognizable uniforms containing Contractor's name. Contractor shall be responsible for supplying all appropriate personal protective equipment including but not limited to safety vests, safety shoes and reflective vests. o The Contractor shall maintain all work sites free of hazards to persons and/or property resulting from his/her operations. Any hazardous condition noted by the Contractor, which is not a result of his/her operations, shall be immediately reported to the City. o Warning signs, lights, and devices shall be installed and displayed in conformity with "The California Manual on Uniform Traffic Devices" for use in performance of work upon highways issued by the State of California, Department of Transportation. o _ Contractor's employees shall be trained in health and safety per CALOSHA TECHNICAL SPECIFICATIONS • Furnish all labor, equipment, materials and supervision to apply EPA registered products that kill tree roots within the City's sewer lines. The contractor will inject the product, or foam, into the sewer lines through the sewer manhole that will kill any roots that have infiltrated through the pipes, while not harming the vegetation above. The Wastewater Supervisor will provide a map of the area to be treated; the map will also include the size of the pipes that will be treated. The contractor shall notify the Wastewater Supervisor when the contractor is working within the city limits under the direction of the city and/or the contract. • Upon completion of an area that is treated, the contractor will provide the Wastewater Supervisor the total footage of pipe and area that was treated. • Invoicing shall reflect the area and footage in order for payment by the city. Duke's Root Control, INC Page A-3 EXHIBIT B SCHEDULE OF BILLING RATES Duke's Root Control, INC Page B-1 Q e1EW �Rp k t'l. ky S eu ��fFORN�P COST FILE One of the mandatory attachments that the PlanetBids portal will prompt you for is called a "Cost File." Please upload this document to satisfy the requirement: PLEASE ATTACH COMPANY RATE SHEETS FOR ITEMS NOT LISTED BELOW. Pipe Size Price per Linear Foot 6 inch pipe $ 0.84 8 inch pipe $ 0.84 10 inch pipe $ 0.92 12 inch pipe $ 1.12 15 inch pipe $ 1.22 The pricing indicated above must be inclusive of any applicable Prevailing Wages. The undersigned certifies that submission of this Proposal is made without prior understanding, arrangement agreement, or connection with any corporation, firm or person submitting a Proposal for the same services, and is in all respects fair and without collusion of fraud. The undersigned certifies that they have not entered into any arrangement or agreement with any City of Newport Beach public officer. The undersigned understands collusive practices are a violation of State and Federal law and can result in fines, prison sentences, and civil damage awards. Proposer Signature William J. Anderson, Vice President Printed Name and Title April 29, 2015 Date RFP 15-66 Cost File 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 officers, agents, employees and volunteers. 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 Duke's Root Control, INC Page C-1 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Pollution Liability Insurance. If required, Contractor shall maintain a policy providing contractor's pollution liability ("CPL") coverage with a total limit of liability of no less than one million dollars ($1,000,000) per loss and two million dollars ($2,000,000) in the aggregate per policy period. Claims - made policies require a 5 -year extended reporting period. The CPL policy shall include coverage for cleanup costs, third -party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for transportation and off -Site disposal of materials. The policy shall not contain any provision or exclusion (including any so-called "insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 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 elected or appointed officers, agents, officials, employees and volunteers 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 subconsultants. 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 and its officers, officials, employees, and agents 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. Duke's Root Control, INC Page C-2 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. 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 Agreement 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, Duke's Root Control, INC Page C-3 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. G. City Remedies for Non -Compliance If Contractor or any sub - consultant 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 Contract, 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. 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. Duke's Root Control, INC Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 7/21/15 Dept./Contact Received From: Date Completed: 7/23/15 Sent to: Joan By: Company/Person required to have certificate: Duke's Root Control Type of contract: All Joan Chris I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 1/1/15-1/1/16 A. INSURANCE COMPANY: _Valley Forge Insurance Company B. AM BEST RATING (A-: VII or greater): A:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? 1,000,000/2,000,000 E. ADDITIONAL INSURED ENDORSEMENT— please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include `solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 1/1/15-1/1/16 A. INSURANCE COMPANY: Valley Forge Insurance Company B. AM BEST RATING (A-: VII or greater) A:XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 E. LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ NIA ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 1/1/15-1/1/16 A. INSURANCE COMPANY: Rochdale Insurance Company B. AM BEST RATING (A-: VII or greater): A:XIII C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY ® N/A ❑ Yes ❑ No V POLLUTION LIABILITY EFF 1/1/15-1/1/16 ❑ N/A ® Yes ❑ No V BUILDERS RISK ® N/A ❑ Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: agi Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 7/23/15 Date RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _ Self Insured Retention or Deductible greater than $ ) ElN/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date * Subject to the terms of the contract. Ill CERTIFICATE OF LIABILITY INSURANCE ` DATE(MM 1 /8/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Haylor, Freyer & Coon, Inc. 231 Salina Meadows Parkway P.O. 4743 CONTACT NAME:PHONE (AAC INA . 315-451-1500 FAX No) E-MAILIAIC Syracuse NY 13221 INSURFRISI AFFORDING COVERAGE NAICY INSURER A: Valley Fore Insurance Company 20508 Y INSURED DUKESROOT INSURER B: Continental Casualty Company 20443 Duke's Root Control Inc 1020 Hiawatha Blvd West Syracuse Syracuse NY 13204 INSURERC:COlumbla Casualty CO. INSURER D: Hartford Companies 19682 INSURER E: Rochdale Insurance CO. INSURER F: COVERAGES CERTIFICATF NIIMRFR- 1034010496 REVISION NUMBER. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADM INSD SMPOLICY .11POLICYNUMBER EFF MMDD POLICY EXP MMIDD/YYY1' LIMITS A X COMMERCIAL GENERM-LIABILITY CLAIMS -MAGE ExIOCCUR Y Y 06004239018 111/2015 1/112016 EACH OCCURRENCE $1,000,000 PREMISES Eaaccmrence $100,000 MED EXP (Any one person) $5,000 X X Lmtd P01lubon PERSONAL S ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY � JECT N LOC GENERALAGGREGATE $2,000,000 PRODUCTS - COMP/OP AGG $1,000,000 Pollution Limit $1,000,000 OTHER: A AUTOMOBILE LIABILITY Y Y 1002379701 1/12015 1/1/2016 CUMMINEU ent $1,000,000 X ANYAUTO BODILY INJURY (Nr person) $ X AUTOSMED AC EoULED HIRED AUTO$ J( NON -OWNED AUTOS BODILY INJURY (Per accident) $ PR PERTY DAMAGE Per accident) $ B X UMBRELLA LIAR X OCCUR C2090460194 1/1/2015 1/1/2016 EACH OCCURRENCE $10,000,000 EXCESS LIAR CLAIMS -MADE AGGREGATE $10,000,000 DED I X I RETENTION$ 10,000 $ E WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNER/EXECUTIVE [7 OFFICEWMEMSER EXCLUDED? NIA WWC312070 11112015 111/20161 PER DTH. X STATUTE ER E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1,000,000 (Mandatory In NH) Ifyes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $1,000,000 A D Pollution Liability Slop Gap Disability C2088304266 C6004239018 2P63996A3AA 1/12015 1/1/2015 1/1/2015 1/1/2016 1/1/2016 1/1/2016 $5,000,000 Occ $5,000,000 Agg Statutory Limits DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Pollution Liability Deductible $50,000, Retro Date 5/2/09 G -140331-D31 (01/13) - Blanket Additional Insured -Owners, Lessees or Contractors -with Products -Completed Operations Coverage per written contract CA2048 (02/99) - Designated Insured per written contract CG2404 (05/09) - General Liability Waiver of Subrogation per written contract CA0444 (03/10) - Automobile Waiver of Subrogation per written contract See Attached... City of Newport Beach Utilities Department PO Box 1768 Newport Beach CA 92658 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REE`PRESENTATIVE '14—L rlae�4 ©1988.2014 ACORD ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD AC LY 6./ AGENCY CUSTOMER ID: DUKESROOT LOC #: ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Haylor, Freyer & Coon, Inc. Duke's Root Control Inc 1020 Hiawatha Blvd West Syracuse NY 13204 POLICY NUMBER CARRIER NAIC CODE EFFECTIVE DATE: THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 45 FORM TITLE: 15A(10/89) - General Liability Notice of Cancellation per written contract '2315XX (02/13) - Automobile Notice of Cancellation per written contract ACORD 101 (2008101 n 2008 ACORD CORPORATION_ All riahfs reeerved The ACORD name and logo are registered marks of ACORD AGREEMENT FOR MAINTENANCE SERVICES WITH DUKE'S ROOT CONTROL FOR SEWER LINE ROOT CONTROL THIS AGREEMENT FOR MAINTENANCE ("Agreement") is made and entered into as of this 25 day of October, 2011 ("Commencement Date") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and charter city J _ ("City"), and DUKE'S ROOT CONTROL, INC., a New York Corporation ("Contractor'), whose principal place of business is 1020 Hiawatha Blvd. West, Syracuse New York cv 13204-1131 and is made with reference to the following: v 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 requires Citywide as -needed maintenance services to control sewer line root intrusion. C. City desires to engage Contractor to furnish all labor, equipment, materials, and supervision to apply EPA registered products into City sewer lines that kill plant or tree roots. ("Project"). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Commencement Date, and shall terminate on June 30, 2013, unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Contractor shall perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ("Services" or "Work"). As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 2.2. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 3. TIME OF PERFORMANCE 3.1. Upon verbal or written request from the Project Administrator (as defined below in Section 5), 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: 3.1.1. A detailed description of the Services to be provided; 3.1.2. The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; 3.1.3. The estimated number of hours and cost to complete the Services; and 3.1.4. The time needed to finish the specific Project. 3.2. 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. 4. COMPENSATION 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 Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Contractor's total compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed One Hundred Fifty Thousand Dollars and 00/100 ($150,000.00) without written amendment to the Agreement. 4.2. Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person and/or classification of employee who performed the Work, a brief description of the Services performed and/or the specific task from the Scope Services attached hereto 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) days after approval of the monthly invoice by City staff. Duke's Root Control, Inc. Page 2 4.3. City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Services attached hereto. Unless otherwise approved, such costs shall be limited and include nothing more than the actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.4. Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the Project Administrator (as defined in Section 5 below) to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. The Wastewater Supervisor or his/her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 6.1. 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 unless approved in advance by the Project Administrator. 6.2. 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 highest professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 7. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1. 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. 7.2. 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 the Contractor. Duke's Root Control, Inc. Page 3 7.3. 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any 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). 7.4. 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 attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 7.5. Contractor shall perform all Project 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 Project Work. 7.6. 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. 7.7. The rights and obligations set forth in this Section shall survive the termination of this Agreement. 8. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 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 Duke's Root Control, Inc. Page 4 to the details of the performance 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. 9. 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 the Contractor on the Project. 10. INSURANCE 10.1. 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. The cost of such insurance shall be included in Contractor's bid. 10.2. Coverage and Limit Requirements. 10.2.1. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 10.2.2. General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3. Automobile Liability. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. Duke's Root Control, Inc. Page 5 10.2.4. Builders Risk. For Agreements or Contracts with Construction/Builders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special form causes of loss with limits equal to one hundred percent (100%) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and/or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 10.3. Other Insurance Provisions or Requirements. 10.3.1. 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 an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be retumed within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.3.2. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1. City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 10.3.2.2. Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to the City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. Duke's Root Control, Inc. Page 6 10.3.2.3. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 10.4. 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. 10.5. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.6. Self -Insured Retentions. Contractor agrees not to self -insure or to use any self-insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If contractor's existing coverage includes a self-insured retention, the self-insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. 10.7. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. 10.8. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, 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 and insurance clauses from each of its subcontractors. 10.9. Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 10.10. 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 Duke's Root Control, Inc. Page 7 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. 10.11..City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. 10.12. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.13. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. PREVAILING WAGES 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 Contract shall be paid to all workmen employed on the Work to be done according to the Contract 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 Contract. 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 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. 12. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the Work outlined in the Scope of Work provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all Duke's Root Control, Inc. Page 8 acts and omissions of the subcontractors. Nothing in this Agreement shall create any contractual relationship between City and 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. 13. 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. 14. CONFLICTS OF INTEREST 14.1. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 14.2. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES 15.1. All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Mike Lynch Municipal Operations Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Email: mlynch@newportbeachca.gov Phone:' 949-718-3415 Duke's Root Control, Inc. Page 9 15.2. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Tom Edwards Duke's Root Control 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 Email: tom@dukes.com Phone: 510-610-6148 16. NOTICE OF CLAIMS 16.1. Unless a shorter time is specified elsewhere in this Contract, before making its final request for payment under the Contract, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Contract. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Contract except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Contract and Contract Documents, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 900 et seq.). 17. TERMINATION 17.1. 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, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 17.2. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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 materials purchased in performance of this Agreement. 18. WARRANTY Contractor agrees that the product applied pursuant to this Agreement shall be covered by a two year guarantee for two years, if the product is reapplied to an area at least six month before the expiration of the previous guarantee, the guarantee is extended for an Duke's Root Control, Inc. Page 10 additional three years as outlined in the Warranty Information, attached hereto as Exhibit E and incorporated in full by this reference. 19. STANDARD PROVISIONS 19.1. Compliance with all Laws. Contractor shall at its own guarantee 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. 19.2. Waiver. A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 19.3. Integrated Contract. This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 19.4. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Contract and the Exhibits attached hereto, the terms of this Contract shall govern. 19.5. Amendments. This Contract 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. 19.6. Effect of Contractor's Execution. Execution of this Contract by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the Work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 19.7. Controlling Law and Venue. The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 19.8. 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, religion, color, national origin, handicap, ancestry, sex or age. 19.9. 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. 19.10. 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. Duke's Root Control, Inc. Page 11 19.11. No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 19.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] Duke's Root Control, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE TPE CITY ATTORNEY Leonie Mulvihill Assistant City Attorney ATTEST: Date: ��. ,ll�►► fi�►111 Leilani 1.rown CITY OF NEWPORT BEACH, A California 7unicipal corporation Date: A in Michas Mayor CONSULTANT: Duke's Root Control, Inc, a New York Corporation Date: By: ZWVX:�'? lielftel i&04 X. AAaerso,, City Clerk _ 4i 'V�c,- President Date: QGtU r , ZDI1 By: 2hlot Constance Wozniak Secretary/Treasurer [END OF SIGNATURES] Attachments: Exhibit A - Scope of Work/ Schedule Exhibit B - Schedule of Billing Rates Exhibit C - Warranty Information Duke's Root Control, Inc. Page 13 EXHIBIT A Scope of Services ® Furnish all labor, equipment, materials and supervision to apply EPA registered products that kill tree roots within the City's sewer lines. • The contractor will inject the product, or foam, into the sewer lines through the sewer manhole that will kill any roots that have infiltrated through the pipes, while not harming the vegetation above. a The Wastewater Supervisor will provide a map of the area to be treated; the map will also include the size of the pipes that will be treated. ® The contractor shall notify the Wastewater Supervisor when the contractor is working within the city limits under the direction of the city and/or the contract. • Upon completion of an area that is treated, the contractor will provide the wastewater supervisor the total footage of pipe and area that was treated. • Invoicing shall reflect the area and footage in order for payment by the city. ® Normal working hours shall be within between the hours of 7:00 a.m. and 4:00 p.m., Monday through Friday. No overtime or weekend work is to be performed without permission from the City. ® All work performed under this contract shall be performed in such a manner as to provide maximum safety to the public and where applicable comply with all safety standards required by CAL -OSHA. The City reserves the right to issue restraint, or cease and desist orders to the Contract when unsafe or harmful acts are observed or reported relative to the performance under this contract. All contractor employees shall have access to a W.A.T.C.H. (Work Area Traffic Control Handbook) at all times. • The Contractor shall maintain all work sites free of hazards to persons and/or property resulting from his/her operations. Any hazardous condition noted by the Contractor, which is not a result of his/her operations, shall be immediately reported to the City. o Warning signs, lights and devices shall be installed and displayed in conformity with 'The California Manual on Uniform Traffic Devices" for use in performance of work upon highways issued by the State of California, Department of Transportation. A-1 I Page EXHIBIT B Schedule of Billing Rate Pipe Size Price per Linear Foot 6 inch pipe $0.82 8 inch pipe $0.82 10 inch pipe $0.82 12 inch pipe $1.25 15 inch pipe $1.75 B-1 I Page EXHIBIT C WARRANTY - -- - - - - - -- -- - — C-1 I Page CIN OF er n+Ecmcoa`� O4 � - RSO CRi OF NEWPO:iT BEi. NEWPORT BEACH City Council Staff Report rn m nnra�n Agenda Item No. 6 October 25, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Municipal Operations Department Director 949 644-3055, mharmon@newportbeachca.gov PREPARED BY: Rachell Wilfert, Management Assistant APPROVED: TITLE: Approval of Maintenance Agreement for City Sewer Line Root Control Services ABSTRACT: In order to maintain the sanitary sewer lines it is necessary to remove tree roots from inside the sewer lines. This preventative maintenance reduces blockages that could lead to sanitary sewer overflows. Duke's Root Control (Duke's) has worked in the past with the City of Newport Beach (City) to treat root intrusions, the on-call maintenance agreement would guarantee pricing for the next two years. RECOMMENDATION: Approve the maintenance agreement for as -needed sewer line root control with Duke's Root Control, Inc for a term of two years and an amount not to exceed $150,000.00. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this purchase. It will be expensed to the Wastewater account in the Municipal Operations Department, 5500- 8189. Approval of Maintenance Agreement for City Sewer Line Root Control Services October 25, 2011 Page 2 DISCUSSION: - Background Intrusion of roots into wastewater pipelines is probably the most destructive problem encountered in the operation of a wastewater collection system. Root intrusion in wastewater pipelines often leads to the collection of grease and debris. If not managed, root intrusion can lead to accidental wastewater stoppages and overflows. Staff utilizes video reports, maintenance history, and assessments of previous stoppages and overflows to more effectively identify areas of root infiltration in order to concentrate root cleaning efforts. RFP Process In accordance with the recently adopted F-14 Administrative Procedures, the Municipal Operations Department, with assistance from the Finance Department, issued an RFP on August 2nd to three companies: Duke's Root Control, Pacific Sewer Maintenance, and Root Tamers. The RFP closed on August 11 m and only one proposal was received. Duke's Root Control was selected based on the company's previous 9 years of experience with the City and competitive rate schedule, which has decreased as a result of this RFP. Contract The maintenance agreement will be for two years with an amount not to exceed $150,000.00. Duke's applies EPA -registered products that kill tree roots without harming above ground vegetation. The material is injected as foam, from manhole -to - manhole, killing all roots on contact and also inhibiting re -growth for 3-5 years on repeat applications. If a treated sewer plugs up and floods due to tree roots during the guarantee period, Duke's will re -treat that section, at their expense, or remit to the City 100% of the payment received to treat that section of sewer. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Approval of Maintenance Agreement for City Sewer Line Root Control Services October 25, 2011 Page 3 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Mark Harmon ' Municipal Operations Department Director Attachments: A. Contract Agreement Attachment A AGREEMENT FOR MAINTENANCE SERVICES WITH DUKE'S ROOT CONTROL FOR SEWER LINE ROOT CONTROL THIS AGREEMENT FOR MAINTENANCE ("Agreement") is made and entered into as of this _ day of October, 2011 ("Commencement Date") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and charter city ("City"), and DUKE'S ROOT CONTROL, INC., a New York Corporation ("Contractor"), whose principal place of business is 1020 Hiawatha Blvd. West, Syracuse New York 13204-1131 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 cavy on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City requires Citywide as -needed maintenance services to control sewer line root intrusion. C. City desires to engage Contractor to furnish all labor, equipment, materials, and supervision to apply EPA registered products into City sewer lines that kill plant or tree roots. ("Project"). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on the Commencement Date, and shall terminate on June 30, 2013, unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Contractor shall perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ("Services" or "Work"). As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 2.2. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. TIME OF PERFORMANCE 3.1. Upon verbal or written request from the Project Administrator (as defined below in Section 5), 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: 3.1.1. A detailed description of the Services to be provided; 3.1.2. The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; 3.1.3. The estimated number of hours and cost to complete the Services; and 3.1.4. The time needed to finish the speck Project. 3.2. 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. 4. COMPENSATION 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 Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Contractor's total compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed One Hundred Fifty Thousand Dollars and 00/100 ($150,000.00) without written amendment to the Agreement. 4.2. - Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractors bills shall include the name of the person and/or classification of employee who performed the Work, a brief description of the Services performed and/or the specific task from the Scope Services attached hereto 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) days after approval of the monthly invoice by City staff. Duke's Root Control, Inc. Page 2 4.3. City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Services attached hereto. Unless otherwise approved, such costs shall be limited and include nothing more than the actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Contractor in the performance of this Agreement. 4.4. Contractor shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the Project Administrator (as defined in Section 5 below) to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. The Wastewater Supervisor or his/her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 6.1. 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 unless approved in advance by the Project Administrator. 6.2. 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 highest professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 7. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1. 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. 7.2. 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 the Contractor. Duke's Root Control, Inc. Page 3 7.3. 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any 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 Contractors 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). 7.4. 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 attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 7.5. Contractor shall perform all Project 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 Project Work. 7.6. 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. 7.7. The rights and obligations set forth in this Section shall survive the termination of this Agreement. 8. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 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 Duke's Root Control, Inc. Page 4 to the details of the performance 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. 9. COOPERATION Contractor agrees to work closely and cooperate fully with Citys designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. 10. INSURANCE 10.1. 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. The cost of such insurance shall be included in Contractor's bid. 10.2. Coverage and Limit Requirements. 10.2.1. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing. statutory benefits and employer's liability Insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees In accordance with the laws of the State of California, Section 3700 of the Labor' Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such Waiver of subrogation endorsement. 10.2.2. General Liabiliiv. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by. Insurance Services Office form CG 00, 01. None of the policies required herein shall be in compliance with these requirementsif they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3. Automobile Liability. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. Duke's Root Control, Inc. Page 5 10.2.4. Builders Risk. For Agreements or Contracts with Construction/Builders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special form causes of loss with limits equal to one hundred percent (100%) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and/or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 10.3. Other Insurance Provisions or Requirements. 10.3.1. 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 an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be. kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.3.2. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1. City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor, premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 10.3.2.2. Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to the City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. Duke's Root Control, Inc. Page 6 10.3.2.3. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 10.4. 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. 10.5. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.6. Self -Insured Retentions. Contractor agrees not to self -insure or to use any self-insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If contractor's existing coverage includes a self-insured retention, the self-insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. 10.7. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. 10.8. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, 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 and insurance clauses from each of its subcontractors. 10.9. Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 10.10. 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 Duke's Root Control, Inc. Page 7 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. 10.11. City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the altemative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. 10.12. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.13. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. PREVAILING WAGES 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 Contract shall be paid to all workmen employed on the Work to be done according to the Contract 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 Contract. 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 subcontractor under him/her to comply with all State of California labor lavws, rules and 'regulations and the parties agree that the City shall not be liable for any violation thereof. 12. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the Work outlined in the Scope of Work provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all Duke's Root Control, Inc. Page 8 acts and omissions of the subcontractors. Nothing in this Agreement shall create any contractual relationship between City and 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. 13. 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. 14. CONFLICTS OF INTEREST 14.1. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 14.2. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES 15.1. All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Mike Lynch Municipal Operations Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Email: mlynch@newportbeachca.gov Phone: 949-718-3415 Duke's Root Control, Inc. Page 9 15.2. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Tom Edwards Duke's Root Control 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 Email: tom@dukes.com Phone: 510-610-6148 16. NOTICE OF CLAIMS 16.1. Unless a shorter time is specified elsewhere in this Contract, before making its final request for payment under the Contract, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Contract. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Contract except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Contract and Contract Documents, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 900 et seq.). 17. TERMINATION 17.1. 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, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 17.2. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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 materials purchased in performance of this Agreement. 18. WARRANTY Contractor agrees that the product applied pursuant to this Agreement shall be covered by a two year guarantee for two years, if the product is reapplied to an area at least six month before the expiration of the previous guarantee, the guarantee is extended for an Duke's Root Control, Inc. Page 10 additional three years as outlined in the Warranty Information, attached hereto as Exhibit E and incorporated in full by this'reference. 19. STANDARD PROVISIONS 19.1. Comoliance with all'Laws. Contractor shall at its own guarantee 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. 19.2. Waiver. A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 19.3. Integrated Contract. This Contract represents the, full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 19.4. Conflicts, or Inconsistencies. inconsistencies 'between, this Contract and .this Contract shall govern. In the event there are any conflicts or the Exhibits attached hereto, the terms of 19.5. Amendments. This Contract 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. 19,6. Effect of Contractor's Execution: Execution of this Contract by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the Work is to be performed, -and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 19.7. Controlling Law and Venue. The'laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 19.8. 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, religion, color, national 'origin, handicap, ancestry, sex or age. 19:9. 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. 19.10. 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. Duke's Root Control, Inc. Page 11 19.11. No Attomeds Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys fees. 19.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] Duke's Root Control, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE,,F_THJE PTY ATTORNEY Assistant City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation By. Michael F. Henn Mayor CONSULTANT: Duke's Root Control, Inc, a New York Corporation . Date, By Michael Hogan President Date: By Constance Wozniak Secretary/Treasurer [END OF SIGNATURES] Attachments: Exhibit A - .Scope of Work/ Schedule Exhibit B - Schedule of Billing Rates Exhibit C - Warranty Information Duke's Root Control, Inc. Page 13 EXHIBIT A Scope of Services 0 Furnish all labor, equipment, materials and supervision to apply EPA registered products that kill tree roots within the City's sewer lines. ® The contractor will inject the product, or foam, into the sewer lines through the sewer manhole that will kill any roots that have infiltrated through the pipes, while not harming the vegetation above. m The Wastewater Supervisor will provide a map of the area to be treated; the map will also include the size of the pipes that will be treated. ® The contractor shall notify the Wastewater Supervisor when the contractor is working within the city limits under the direction of the city and/or the contract. a Upon completion of an area that is treated, the contractor will provide the wastewater supervisor the total footage of pipe and area that was treated. o invoicing shall reflect the area and footage in order for payment by the city. m Normal working hours shall be within between the hours of 7:00 a.m. and 4:00 p.m., Monday through Friday. No overtime or weekend work is to be performed without permission from the City. o All work performed under this contract shall be performed in such a manner as to provide maximum safety to the public and where applicable comply with all safety standards required by CAL -OSHA. The City reserves the right to issue restraint, or cease and desist orders to the Contract when unsafe or harmful acts are observed or reported relative to the performance under this contract. All contractor employees shall have access to a W.A.T.C.H. (Work Area Traffic Control Handbook) at all times. • The Contractor shall maintain all work sites free of hazards to persons and/or property resulting from his/her operations. Any hazardous condition noted by the Contractor, which is not a result of his/her operations, shall be immediately reported to the City. o ' Warning signs, lights and devices shall be installed and displayed in conformity with "The California Manual on Uniform Traffic Devices" for use in performance of work upon highways issued by the State of California, Department of Transportation. A-1IPage EXHIBIT B Schedule of Billing Rate Pipe Size Price per Linear Foot 6 inch pipe $0.82 8 inch pipe $0.82 10 inch pipe $0.82 12 inch pipe $1.25 15 inch pipe $1.75 -.. O:cir3hzg WARRANTY C-1 I Page Yll loluAmi. RRA, %3i1aA� a9 WWW lead YA& ; lqoi @ -4 IM ZM4 760T )AP"ISOM,h tM Al NY"t MAINTENANCE AGREEMENT FOR SEWER LINE ROOT CONTROL SERVICES WITH DUKE'S ROOT CONTROL INC. THIS MAINTENANCE AGREE ENT ("Agreement" or "Contract") is made and entered into as of this � day of �U j�j 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and Charter City ("City"), and DUKE'S ROOT CONTROL, INC., a New York Corporation ("Contractor'), whose principal place of business is 1020 Hiawatha Blvd., West, Syracuse, New York 13204- 1131 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 requires sewer main line maintenance to control sewer line root intrusion. C. City desires to engage Contractor to root foam sewer lines at various locations throughout the City for a total of 51,961 Lineal Feet ("LF") of 8 inch, 10 inch and 12 inch sewer lines ("Project"). D. Contractor is familiar with the locations of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 301h day of June 2011, unless terminated earlier as set forth herein. 2. SCOPE OF WORK Contractor shall perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ("Services" or "Work'). As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class Work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Contractor shall complete the Work within the time set forth in this Section. All Work shall be completed by JUNE 30TH, 2011. 4. COMPENSATION As full compensation for the performance and completion of the Project as required by the Scope of Work and Schedule of Billing Rates attached hereto as Exhibit A, City shall pay to Contractor and Contractor accepts as full payment the sum of Forty -Three Thousand, Six Hundred and Forty -Seven Dollars and 241100 ($43,647.24). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. The City shall make progress payments as the Project Work proceeds based on Project Work completed. City shall pay Contractor no later than thirty (30) days after approval of invoice by City staff. 5. ADMINISTRATION This Agreement will be administered by the Utilities Department. Mike Lynch or his designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 6.1 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 unless approved in advance by the City Administrator. 6.2 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 the highest professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 7. RESPONSIBILITY FOR DAMAGES OR INJURY ---------- --- --- ------ --- - - - - -- --------------------- 7.1 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 subconcontractors, or its workers, or anyone employed by either of them. 7.2 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 Contractors Work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 7.3 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Contract, any Work performed or Services provided under this Contract 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, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 7.4 Contractor shall perform all Project 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 3 1 P a g e private or public property damaged during the performance of the Project Work. 7.5 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. 7.6 The rights and obligations set forth in this Section shall survive the termination of this Contract. 8. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil Service status or other right of employment shall accrue to Contractor or its employees. 9. 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 the Contractor on the Project. 10. 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. The cost of such insurance shall be included in Contractor's bid. 1. Coverage and Limit Requirements. a. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employees Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 41 Page b. General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. c. Automobile Liability. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. d. Builders Risk. For Contracts with Construction/Builders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for .all risk" or special form causes of loss with limits equal to one hundred percent (100%) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and/or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 2. Other Insurance Provisions or Requirements 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 an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this contract. All of the executed documents referenced in this contract must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. b. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: '------------------------------- --------------------- i. City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. ii. Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or Services provided to the City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. iii. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. c. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. d. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required.. e. Self -Insured Retentions. Contractor agrees not to self -insure or to use any self-insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If contractor's existing coverage includes a self-insured retention, the self-insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. -- .................................................... f. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. g. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, 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 and insurance clauses from each of its subcontractors. h. Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. L 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. j. City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. k. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. I. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these 71 Page specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the work outlined in the Scope of Services provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Contract shall create any contractual relationship between City and 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. 12. 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 Contract. 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. 13. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Contract by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 14. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Mike Lynch Utilities Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Phone: 949-718-3415 Fax: 949-646-5204 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Tom Edwards Duke's Root Control, Inc. 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 Phone: 315-472-4781 Fax: 315-475-4203 15. TERMINATION 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, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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 materials purchased in performance of this Agreement. 16. 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. 17. WAIVER A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 91 Page 18. INTEGRATED AGREEMENT 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. 19. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services, the terms of this Agreement shall govern. 20. 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. 21. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the Work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 22. 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. 23. 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. 24. WARRANTY Contractor agrees that the Razorooter II® installed pursuant to this Agreement shall be covered by a two (2) year warranty as outlined in the Warranty Information, attached hereto as Exhibit B and incorporated in full by this reference. The Warranty shall survive the termination of this Agreement. ------------------------------- IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY ByM� 'V— jjj, y Leonie Mulvihill Assistant City Attorney ATTEST: M CITY OF NEWPORT BEACH, A California Municipal Corporation City Manager CONTRACTOR: Pacific Sewer Maintenance By: ich el S. Van Pres dent By: &rte Constance Wozniak Secretary Attachments: Exhibit A - Scope of Services and Schedule of Billing Rates Exhibit B - Warranty Information 111Page � DUKE'S The Full -Service Root Control Experts June 8, 2010 Mr. Mike Lynch Wastewater Supervisor City of Newport Beach 949 16th Street Newport Beach, CA 92663 Dear Mr. Lynch: 1020 Hiawatha Blvd.. West Syracuse. NY 13204-1131 1 -800 -44 -ROOTS (315)472-4781 FAX(315)475-4203 Thank you for expressing interest in Duke's foaming root control service. As per your request for quotation, Duke's Root Control, Inc. will treat any sewers for the unit prices listed below: Pipe Size Unit Price 6 inch $0.84/foot 8 inch $0.84/foot 10 inch $0.84/foot 12 inch $0.84/foot Prices are computed per linear foot, manhole to manhole, and Duke's standard guarantee applies to all sanitary sewers treated. This would be a total of $43,647.24 to treat the proposed 51,961 feet of 6-12 inch pipes. If you require any further information, please call 1-800.447-6687. Thank you for your interest in our service. Incerely, Thomas Edwards SYRACUSE • DALLAS ATLANTA • COLUMBUS • CHICAGO OAKLAND • PORTLAND • DENVER DUKE'S ROOT CONTROL, INC. 8" - 19,189 + 19,754 = 382943 @ $0.84 = $32,712.12 10" - 2,768 + 3,723 = 6,491 @ $0.84 = $5,452.44 12" - 6,527 @ $0.84 = $5,482.68 TOTAL = 51,961 LF @ $0.84 = $43,647.24 0 DUKES ROOT CONTROL, INC. The Full -Service Root Control Experts June 7. 2010 Mike Lynch Wastewater Supervisor City of Newport Beach 949 16th Street Newport Beach, CA 92663 RE: Chemical Root Control Dear Mr. Lynch: 1020 Hiawatha Blvd, West Syracuse, NY 13204-1131 1 -800114 -ROOTS (315) 472-4781 FAX (315) 475-4203 Mr. Tom Edwards asked that I forward you some information about our products and services. To that end, I prepared the following list of factors for you to consider with respect to your root -control program: Service: 1. Duke's is the oldest, largest and most experienced sewer root control company in the U.S. 2. With the exception of new hires, all of Duke's field personnel are State Certified pesticide applicators. Therefore, while performing any work for the City of Newport Beach, Duke's will maintain a highly trained pesticide applicator, who is certified by the CA Department of Pesticide Regulation, on site at all times. 3. All Duke's crew chiefs have logged over 3,000,000 feet of experience across several hundred jobs. 4. All Duke's crew personnel receive extensive training, including confined space entry training and certification. 5. All of Duke's work is backed by a money -back guarantee (see enclosure) against stoppages and live roots. Please note that, "The decision of the customer (City of Newport Beach) as to the cause of the stoppage is binding." SYRACUSE • DALLAS ATLANTA • COLUMBUS • CHICAGO OAKLAND PORTLAND • DENVER Mr. Mike Lynch Page 2 June 7, 2010 6. Pollution liability insurance, which is appropriate for pesticide application work, is normally excluded from general liability policies. Duke's maintains $5,000,000 in pollution liability coverage with an A++ X/ rating. In addition, Duke's carries $10,000,000 excess umbrella liability coverage. 7. Duke's local representatives are highly trained sewer root control applicators. In the case of the City of Newport Beach, Duke's representative, Tom Edwards, is certified by the CA DPR as a "Qualified Applicator" and as a "Pesticide Advisor." As with all of our customers, Tom will return to Newport Beach periodically to inspect the work and arrange for any guarantee work that might arise. Product: 1. Duke's Razorooter® II product represents the latest and highest form of chemical technology for destroying roots in sewers. First and foremost, Razorooter® II is the most effective sewer root control product available today. 2. Unlike Metam-based sewer use products, RazorooterO II is not classified for "Restricted Use" by the US EPA and the CA DPR. Restricted -Use materials are considered the most toxic of all pesticides. Additionally, Razorooter II is not listed on the CA Prop 65 List of Chemicals Known to Cause Cancer and Reproductive Toxicity as are Metam-based products. 3. Diquat, the active ingredient (herbicide) in Razorooter® II, is listed as a category E compound. This classification is the most favorable rating attainable on the US EPA's chronic exposure toxicological rating scale. Diquat earned this rating as a result of extensive laboratory evidence, which determined that Diquat is not a carcinogen, teratogen, mutagen, or oncogene. 4. Diquat is not a volatile compound (i.e., does not readily turn to gas). Diquat is not readily absorbed by the skin, unless through a cut (abrasion or other skin defect) or by the repeated application of Diquat to the same area of the skin. Therefore, the use of Diquat significantly reduces the principal exposure risks to humans that are normally associated with sewer root control herbicides. Mr. Mike Lynch Page 3 June 7, 2010 5. Metam sodium root control products have been identified as a precursor for formation of n-nitrosodimethylamine (NDMA). The California Toxics Rule (40 CFR 131) sets regulations on priority pollutants, such as NDMA, that may affect public health by contact with drinking water or recreational waters, and threaten water reuse. 6. The use of Razorooter® II requires only 10% of the herbicide contained in Metam and Dichlobenil based products. This amounts to a 90% reduction in the use of chemicals to do the same job. 7. Diquat is significantly friendlier to wastewater plants than Metam-based products. Packaging and Equipment: Razorooter® II is packaged in DOT certified re -usable containers. Once emptied, these containers are shipped back to the factory for refilling. This eliminates the generation of pesticide contaminated waste. This packaging is fitted with dry -lock fittings that enable Duke's crews to transfer chemical to the application equipment without opening the container. Therefore, all chemical handling is handled as a closed system, which significantly reduces the potential for chemical spills in the field. 2. Duke's does not use hydraulic sewer cleaners Getters) to string sewer lines. The excessive pressure generated by jetters damages roots prior to treatment, which significantly reduces the effectiveness of the treatment. Please see attached letter from Dr. John Groninger. 3. Duke's equipment is mounted on 4 -wheel drive, one ton flat bed trucks that are equipped with a front bumper guard and winch. These vehicles provide much better access to off road manholes than typical sewer jetters do, and they are less likely to damage the landscape (turf). Mr. Mike Lynch Page 4 June 7, 2010 Corporate Background: 1. As mentioned above, Duke's is the largest and most experienced root -control application firm in the US. Duke's has specialized in the sewer root control application for over 25 years. During that time, Duke's has successfully treated every type of sewer imaginable, including the sewer servicing the official residence of the Vice President of the United States. 2. Duke's maintains an ongoing Research and Development program in cooperation with Virginia Tech University and Southern Illinois University. The purpose of this research is to improve product quality with respect to effectiveness, worker health and environmental safety. 3. Duke's provides sewer root control training programs for various state environmental regulatory agencies and co-authored the US EPA sewer root control training manual that is used by most state regulatory agencies. 4. As both the product producer and applicator, Duke's is able to ensure better quality control over every aspect of a sewer root control project. Thank you for your interest in our service. Please contact me toll free at (800) 447-6687, should you have any questions or concerns. Veryulyour , Michael S. Hogan President Enclosures GUARANTEE We guarantee to kill all the roots In every sewer, we treat and to eliminate mala line stoppages caused by live tree roots. It live meds are found in a sewer within six months after the application, or H a treated sewer plugs up and floods due to tree nooffi during the guarantee period (see below), we will re4reet that esctlon, at our own expense, or remit to the customer 100% of the payrnard we recehied to treat that section of sewer. The deuton of the customer as to the cause of the plug -up to binding. This guarantee applies only to sewer stoppages caused by lie use roots. It does not apply to stoppages caused by grease or other foreign matter; Hat, collapsed or deformed pipe; of Hooding caused by a surcharged or plugged sewer section downstream from a guaranteed sewer section. This guarantee applies to main line sewers only. Guarantee Period Any section of sanitary sewer we treat will not plug up and flood due to tree root obstructIons for a period of two yams. The guarantee period begins on the date of treatment, and ends two years after the date of treatment. Extended Guarantee With Repeat Treatments Wtrenever we perform a repeat application to a section of sewer within six morelos of the expiration of the previous guarantee, the guarantee is extended for an additional three years. Re -treatments, performed at no charge in honor of the guarantee, do not extend the expiration date of the guarantee. Liability Duke's is an insured, fully licensed pesticide application company, and is certified to apply EPA registered herbicides to sanitary sewers in compliance with Federal and State regulations. Duke's accepts responsibility for any damage to aboveground vegetation. Duke's is not responsible for damages caused by sewer stoppages. 1020 Hiawatha Blvd., West a Syracuse, NY 13204-1131 (315) 472-4781 • 006-447-8087 • Fax (315) 475-4203 AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ON-CALL SEWER LINE ROOT CONTROL SERVICES THIS AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT, is entered into as of this day of December, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("CITY"), and DUKE'S ROOT CONTROL, INC., a New York Corporation whose address is 1020 Hiawatha Blvd. West, Syracuse, New York, 13204-1131 ("CONTRACTOR"), and is made with reference to the following: RECITALS: A. On March 15, 2007, CITY and CONTRACTOR entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT", for on-call sewer line root control services. B. CITY and CONTRACTOR have entered into 2 separate AMENDMENTS of the AGREEMENT, the latest dated January 30, 2009. C. CITY desires to enter into this AMENDMENT NO.3 to extend the term of the AGREEMENT to December 31, 2011. D. CITY and CONTRACTOR mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 3", as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of the AGREEMENT shall be extended to December 31, 2011. 2. COMPENSATION 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 shall be based on the attached Schedule of Billing Rates (Exhibit A). 3. SERVICES TO BE PERFORMED Contractor shall perform sewer line root control services pursuant to this Amendment No. 3 and according to the Request to Extend On -Call Professional Services Agreement dated December 2, 2009, attached hereto as (Exhibit B). 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 3 on the date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: Y)vq� net amp, Assist t City A orney ATTEST: am Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation org urdoch, Utilities Director CONTRACTOR: DUKES ROOT CONTROL, INC. By: 7 Corp to Officer) Title: President Print Name: Michael S. Hogan By: 3,12 �amu, (Financial Offi r) Title: Secretary Print Name: Constance Wozniak Attachments: Exhibit A — Schedule of Billing Rates Exhibit B — Request to Extend On -Call Services Agreement ROOT CONTROL, ! C> The Full -Service Root Control Experts BILLING RATES Pipe Size Price per Foot 6 inch $0.84/foot 8 inch $0.84/foot 10 inch $0.84/foot These rates will remain in place until December 31, 2011. 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 "All 1 -800 -44 -ROOTS (315)472-4781 FAX (315) 475-4203 SYRACUSE a DALLAS ATLANTA ® COLUMBUS ® CHICAGO OAKLAND PORTLAND • DENVER ROOT CONTROL, INC. The Full -Service Root Control Experts December 2, 2009 Ms. Cindy Asher Utilities Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658-8915 FXH1020 Hiawatha Blvd., West ', Syracuse, 13204-1131 8 1 -800 -44 -ROOTS (315) 472-4781 FAX (315) 475-4203 RE: Sewer Line Chemical Root Control, Contract Renewal Dear Ms. Asher, Duke's Root Control, Inc. is requesting to extend the Professional Services Agreement for an additional two years to commence on January 1, 2010. New rate sheets are attached. /Fours truly, Tom Edwards SYRACUSE ® DALLAS ATLANTA - COLUMBUS - CHICAGO OAKLAND PORTLAND • DENVER AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ON-CALL SEWER LINE ROOT CONTROL SERVICES THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, entered into this 30th day of January, 2009, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City") and DUKE'S ROOT CONTROL, INC., a New York corporation whose address is 1020 Hiawatha Blvd., West, Syracuse, New York 13204-1131 ("Contractor"), and is made with reference to the following: RECITALS A. On March 15th, 2007, CITY and CONTRACTOR entered into an On -Call Professional Services Agreement, hereinafter referred to as "Agreement", for Sewer Line Root Control Services. This Agreement is scheduled to expire on December 31St, 2007. B. On December 27, 2007 City and Contractor entered into Amendment No. 1 to extend the term of the Agreement to December 31 st, 2008. C. City desires to enter into this Amendment No. 2 to extend the term of the Agreement to December 315t, 2009. C. City and Contractor mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 2", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Contractor shall perform sewer line root control services in various locations throughout the City pursuant to this Amendment No. 2 and according to the Request to Extend On -Call Services Agreement dated January 19, 2009, attached hereto as Exhibit A. 2. Compensation to the Contractor for services performed pursuant to this Amendment No. 1 for all work performed from January 1, 2009, to December 31, 2009, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to December 31, 2009. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: By: Aaron Harp, Assistant City Attorney for the City of Newport Beach ATTEST: `� By: y: Leilani Brown, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By. ,- eonje M doch, Utilities Director for the City of Newport Beach DUKE'S ROOT CONTROL, INC. B: Title: President Print Name: Ae eA �A (Financial Officer) Title:_ 5aare -r b1 Print Name:Vj0z(k; dX, Attachment: Exhibit A — Request to Extend On -Call Services Agreement Exhibit B — Schedule of Billing Rates 9ft D ROOT CONTROL, INC. The Full -Service Root Control Experts January 19, 2009 Ms. Cindy Asher Administrative Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 RE: Professional Services Agreement Duke's Sewer Line Chemical Root Control Service Dear Ms. Asher: 1020 Hiawatha Blvd., West Syracuse. NY 1 3204-1 1 3 1 1 -800 -44 -ROOTS (3151472-4781 FAX (31511475-4203 Duke's Root Control, Inc. is requesting to extend the Professional Services Agreement for another year to commence on January 1, 2009, and expire on December 31, 2009. The new rate sheet is attached. Please feel free and do not hesitate to contact our office at 1-800-447-6687 if you have any questions or need additional information. Ypurs truly, Tom Edwards Enclosure SYRACUSE , DALLAS ATLANTA - COLUMBUS - CHICAGO OAKLAND • PORTLAND - DENVER DUKE ROOT CONTROL, INC. The Full -Service Root Control ExPe,ts January 18.2OOS M[ Mike Lynch Wastewater Supervisor City OfNewport Beach 33OONewport B|vd./8oX17O0 Newport Beach, CA 82658-8915 Dear Mr. Lynch: 1O2OHiawatha 8lvd,West Syracuse, NY13204'1131 (315)4724781 FAX (315)475-4203 Thank you for expressing interest in Duke's foaming root control men/iceAs per your request for quotation, Duke's Root Control, Inc. will treat any sewers for the unit prices listed below: Pipe Size Price per Foot 6 inch $0.79/hoVt 8inoh $079/foot 10 inch $0.79/ho8t 12 inch $1.39/foot 15 inch $1.39/foot Prices are computed per linear foot, manhole tomanhole, and are good through December 31 2009.A$2'OOO.0OrnininnUnli$[aquined.andOuhe�mt8RdardQuor@nteeapo}�atoeUsanbarysewers' treated, Prices for pipes larger than 15 inch are determined on a case-by-case basis. /fyou require any further information, please call 1-8OO-447-0O87. Thank you for your interest in our service. ` Thomas Edwards SYRACUSE " DALLAS ° ATLANTA ^ COLUMBUS ^ CHICAGO OAKLAND -PORTLAND- DENVER AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL FOR ON-CALL SEWER LINE ROOT CONTROL SERVICES THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this g�L_ day of December, 2007, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City") and DUKE'S ROOT CONTROL, INC., a New York corporation whose address is 1020 Hiawatha Blvd., West, Syracuse, New York 13204-1131 ("Contractor"), and is made with reference to the following: RECITALS A. On March 15th, 2007, CITY and CONTRACTOR entered into a On -Call Professional Services Agreement, hereinafter referred to as "Agreement", for Sewer Line Root Control Services. This Agreement is scheduled to expire on December 31St, 2007. B. City desires to enter into this Amendment No. 1 to extend the term of the Agreement to December 31 st, 2008. C. City and Contractor mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 1", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Contractor shall perform sewer line root control services in various locations throughout the City pursuant to this Amendment No. 1 and according to the Request to Extend On -Call Services Agreement dated December 7, 2007, attached hereto as Exhibit A. 2. Compensation to the Contractor for services performed pursuant to this Amendment No. 1 for all work performed from January 1, 2008, to December 31, 2008, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to December 31, 2008. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: By: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: Bye P7 LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH A Municipal Corp ation By: Steve yrter, A Utilities Director for the City of Newport Beach DUKE'S ROOT CONTROL, INC. By:,--X//h —�K , / . 6/ Title: President Print Name: By: (Financial Offic' ) Title: eJeerra rs Print Name: Anata nnr� l�a�n,a„ (1 Attachment: Exhibit A — Request to Extend On -Call Services Agreement Exhibit B — Schedule of Billing Rates 12/10/2007 09:09 FAX 315 475 4203 DUROOT KE'S ROL, INC. The Full -Service Root Control Experts December 7. 2007 Ms. Cindy usher Utilities Adinirtistrati).,e Nlanar,cr City of Newport Beach P.O. Box 1768 Newport Be-,:zch, CA 92658 Dear Ms. Asher - Duke's Root Control, Inc EXHIBIT 11Ap 1020 Hiawatha Blvd., west Syracuse, NY 132041131 1 -,800 -44 -ROOTS (315) 472-4781 Fax: (315) 475-4203 Please extend our "On ('all Professional Services for another. year. commencing January 1, 2008. Feel 1'rec to call me if you ha•,,e u"s, lat�stions at 1-800-769-8690_ Sincerely; Torn Edwards Western Re�zional Mana0 er SYRACUSE - DALLAS - ATLANTA - COLUMBUS - CHICAGO OAKLAND - PORTLAND - DENVER PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ON-CALL SEWER LINE ROOT CONTROL SERVICES THIS AGREEMENT is made and entered into as of this 154 day of March, 2007, by and between, the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and DUKE'S ROOT CONTROL, INC., a New York corporation whose address is 1020 Hiawatha Blvd., West, Syracuse, New York 13204-1131 ("Consultant"), 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 has a need for on-call assistance for sewer line herbicide foaming for the control of tree roots in the City's sewer lines. C. City desires to engage Consultant to perform on-call [sewer line root control services throughout the City on an as need basis ("Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Tom Edwards. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 st day of December 2007, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" sewer line root control (foaming) services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Consultant 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: A. A detailed description of the services to be provided; B. The estimated number of hours and cost to complete the services. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant'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 to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) 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 Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand -delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to -exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F-14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employee who performed the work, a brief description of the services performed and/or the specific task in the letter proposal 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 Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work 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 Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit A. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable 3 times during the Agreement term. Consultant has designated Tom Edwards to be its Project Manager. Consultant shall not remove or reassign the Project Manager 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. Consultant, 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. Consultant 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. Mike Lynch shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, 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 Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. E_ 3If_3 k" 17_1 N 9X97 JEW7_1 V0 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. Cl 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and/or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, 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). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. t 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant 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 the Consultant on the Project. 12. CITY POLICY Consultant 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 Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by 0 City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for 7 any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant 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. 15. 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 Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. 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 Consultant, 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 Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to 9 Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. 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 authorizes the release of information. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant 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 Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment 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. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant 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. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. iff 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 23. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. NOTICES All notices, demands, requests or approvals 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Mr. Ed Burt Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658-8915 Phone: 949-644-3011 Fax: 949-646-5204 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Mr. Tom Edwards DUKE'S ROOT CONTROL, INC. 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 Phone: 800-447-6687 Fax: 315-475-4203 25. TERMINATION 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, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. COMPLIANCE WITH ALL LAWS Consultant 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 Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 27. 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. 28. 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. 12 29. 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. 30. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 31. 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. 32. 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. 33. 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. 34. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By:. ,— C , L", Aaron C. Harp, Assistant City Attorney for the City of Newport Beach r-11WIga-MP By:,;)/ Y= a" LaVonne Harkless, Citv Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: George itTurdoch Acting Utilities Director for the City of Newport Beach CONSULTANT: Duke's Root Control, Inc. By: r. Tom Edwar s Western Regional Manager By: L&jo Mr. William Anderson Vice President Attachments: Exhibit A — Proposal including linear foot pricing 14