HomeMy WebLinkAboutC-7143-2 - Contract for the Improvement of Public Work Citywide LED ReplacementcJ CITY ClE^K
CONTRACT FOR THE IMPROVEMENT OF PUBLIC WORK
t= CITYWIDE LED REPLACEMENT WITH EXPRESS ENERGY SERVICES, INC.
U THIS CONTRACT FOR THE IMPROVEMENT OF PUBLIC WORK ("Contract') is
made and entered into as of this 7th day of November, 2017 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and charter
city ("City"), and Express Energy Services, Inc., a California corporation ("Contractor"),
whose principal place of business is 10610 Humbolt Street, Los Alamitos, California 90720,
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 provide installation of LED Luminaires
in 213 City streetlights, as more fully described in the "Contract Documents"
as defined in Section 2 of this Contract ("Project').
C. City has solicited and received a proposal from Contractor and desires to
retain Contractor to render services under the terms and conditions set forth
in this Contract.
D. Contractor has examined the location of all proposed work, carefully
reviewed and evaluated the specifications set forth by 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
Contract over a period of 15 Working days commencing upon issuance of
the "Notice to Proceed".
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
TERM
The term of this Contract shall commence on the Effective Date and shall terminate
on December 31, 2018, unless terminated earlier as provided for herein.
2. SCOPE OF WORK
2.1. Contract Documents. The complete Contract for the Project includes all of
the following documents: Single Source Selection Memorandum, attached hereto as
Exhibit A; Proposal, attached hereto as Exhibit B; Insurance Requirements, attached
hereto as Exhibit C; Labor and Materials Payment Bond attached hereto as Exhibit D;
Faithful Performance Bond, attached hereto as Exhibit E; all Project Permits; the
Standard Special Provisions and Standard Drawings; Plans and Special Provisions for
Contract No. 6427; Standard Specifications for Public Works Construction (current
adopted edition and all supplements); and this Contract, and all modifications and
amendments thereto (collectively the "Contract Documents"). Exhibits A, B, C, D and E,
and all other named Contract Documents, are incorporated herein by reference. The
Contract Documents comprise the sole agreement between the parties as to the subject
matter therein. Any representations or agreements not specifically contained in the
Contract Documents are null and void. Any amendments must be made in writing, and
signed by both parties in the manner specified in the Contract Documents.
2.2. Scope of Work. 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 required for the Project
as identified in the Contract Documents ("Work" or "Services").
2.3. All of the Work to be performed and materials to be furnished shall be in
strict accordance with the provisions of the Contract Documents. Contractor is required
to perform all activities, at no extra cost to City, which are reasonably inferable from the
Contract Documents as being necessary to produce the intended results.
3. TIME OF PERFORMANCE
3.1. Time is of the essence in the performance of Work under this Contract and
Contractor shall complete the Work within 15 Working days from the date of issuance of
the "Notice to Proceed." Failure to complete the Work in the time allotted may result in
termination of the Contract by City and assessment of damages as outlined in Section
3.2.
3.2. The parties agree that it is extremely difficult and impractical to determine
and fix the actual damages that City will sustain should Contractor fail to complete the
Project within the time allowed. Should Contractor fail to complete the Work called for in
this Contract within 15 Working days from the date of issuance of the Notice to Proceed,
Contractor agrees to the deduction of liquidated damages in the sum of Two Thousand
Dollars ($2,000.00) for each calendar day beyond the date scheduled for completion.
4. COMPENSATION
4.1. As full compensation for the performance and completion of the Project as
required by the Contract Documents, City shall pay to Contractor and Contractor accepts
as full payment the sum of Eighty One Thousand Nine Hundred Five Dollars and
97/100 ($81,905.97), less any amount deducted pursuant to Section 3.2. Contractor shall
not receive any additional compensation unless approved in writing in advance by City's
Project Administrator as defined herein. City shall make full payment to Contractor no
later than thirty (30) calendar days after acceptance of the Work by City.
4.2. This compensation includes:
4.2.1. Any loss or damage arising from the nature of the Work;
4.2.2. Any loss or damage arising from any unforeseen difficulties or
obstructions in the performance of the Work; and
Express Energy Services, Inc. Page 2
4.2.3. Any expense incurred as a result of any suspension or
discontinuance of the Work, but excludes any loss resulting from earthquakes of a
magnitude in excess of 3.5 on the Richter Scale and tidal waves, including tsunamis, and
which loss or expense occurs prior to acceptance of the Work by City.
5. PROJECT MANAGER
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
term of the Contract. Contractor has designated Doc Robert Rivers to be its Project
Manager. Contractor shall not remove or reassign the Project Manager without the prior
written consent of City. City's approval shall not be unreasonably withheld.
6. ADMINISTRATION
This Contract shall be administered by the Public Works Department. City's Public
Works Director, or designee, shall be the Project Administrator and shall have the authority
to act for City under this Contract. The Project Administrator or designee shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Contract.
7. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE
7.1. Contractor shall use only the standard materials and equipment as
described in the Contract Documents in performing Work under this Contract. Any
deviation from the materials or equipment described in the Contract Documents shall not
be utilized unless approved in advance by the Project Administrator.
7.2. Contractor shall comply with the terms and conditions of the Contract
Documents.
7.3. All of the Work 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 Contract, and that it will perform all Work in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances.
7.4. 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, Contractor certifies that the Work conforms to the requirements of this
Contract, all applicable federal, state and local laws, and legally recognized professional
standards.
7.5. 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 Contract.
Express Energy Services, Inc. Page 3
7.6. 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.
8. CHANGE ORDERS
8.1. This Contract may be amended or modified only by mutual written
agreement of the parties.
8.2. The Contractor shall only commence work covered by a change order after
the change order is executed and notification to proceed has been provided by the City.
8.3. There shall be no change in the Contractor's members of the project team,
as listed in the approved proposal, which is a part of this contract without prior written
approval by the City.
9. RESPONSIBILITY FOR DAMAGES OR INJURY
9.1. City and its elected or appointed officers, agents, officials, employees and
volunteers 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 Work 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 elected or appointed officers, agents, officials, employees and
volunteers (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 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, reckless, 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 for any or all of them).
Express Energy Services, Inc. Page 4
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 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 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 Project Work.
9.6. To the extent authorized by law, as much of the money due Contractor
under and by virtue of the Contract 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. Nothing in this Section or any other portion of the Contract Documents shall
be construed as authorizing any award of attorneys' fees in any action to enforce the
terms of this Contract, except to the extent provided for above.
9.8. The rights and obligations set forth in this Section shall survive the
termination of this Contract.
10. INDEPENDENT CONTRACTOR
City has retained Contractor as an independent contractor and neither Contractor nor
its employees are to be considered employees 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 express terms of this Contract. 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 Contract. Anything in this Contract that
may appear to give City the right to direct Contractor as 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 Work.
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.
Express Energy Services, Inc. Page 5
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 and/or designee
informed on a regular basis regarding the status and progress of the Project, activities
performed and planned, and any meetings have been scheduled or are desired.
14. BONDING
14.1. Contractor shall obtain, provide and maintain at its own expense during the
term of this Contract both of the following: (1) a Faithful Performance Bond in the amount
of one hundred percent (100%) of the total amount to be paid Contractor as set forth in
this Contract in the form attached as Exhibit E and incorporated herein by reference; and
(2) a Labor and Materials Payment Bond in the amount of one hundred percent (100°/x)
of the total amount to be paid Contractor as set forth in this Contract and in the form
attached as Exhibit D and incorporated herein by reference.
14.2. The Faithful Performance Bond and Labor and Materials Payment Bond
shall be issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, (2)
listed as an acceptable surety in the latest revision of the Federal Register Circular 570,
and (3) assigned a Policyholders' Rating A- (or higher) and Financial Size Category Class
VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property -
Casualty.
14.3. Contractor shall deliver, concurrently with execution of this Contract, the
Faithful Performance Bond and Labor and Materials Payment Bond, and a certified copy
of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance
Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the
State of California.
15. 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 Contract or for other periods as specified in this Contract, 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.
16. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California, not
less than the general prevailing rate of perdiem wages including legal holidays and overtime
Work for each craft or type of workman needed to execute the Work contemplated under
Express Energy Services, Inc. Page 6
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 perdiem 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.
17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Contract, the Work to be performed
under this Contract 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 co -tenant if Contractor is a partnership or joint -venture or
syndicate or co -tenancy, which shall result in changing the control of Contractor. Control
means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more
of the assets of the corporation, partnership or joint -venture.
18. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform the Work on this Project are
identified in the Proposal attached as Exhibit B. Contractor shall be fully responsible to City
for all acts and omissions of any 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. 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 Work to be performed
under this Contract shall not be otherwise assigned, transferred, contracted or
subcontracted out without the prior written approval of City.
19. OWNERSHIP OF DOCUMENTS
19.1. 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
Contract, 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.
Express Energy Services, Inc. Page 7
19.2. Documents, including drawings and specifications, prepared by Contractor
pursuant to this Contract, 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 Contractor
will be at City's sole risk and without liability to Contractor. Further, any and all liability
arising out of changes made to Contractor's deliverables under this Contract by City or
persons other than Contractor is waived against Contractor and City assumes full
responsibility for such changes unless City has given Contractor prior notice and has
received from Contractor written consent for such changes.
20. RECORDS
Contractor shall keep records and invoices in connection with the Work to be
performed under this Contract. Contractor shall maintain complete and accurate records
with respect to the costs incurred under this Contract 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 Contract. 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,
documents, proceedings and activities related to the Contract for a period of three (3) years
from the date of final payment to Contractor under this Contract.
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 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 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. CONFLICTS OF INTEREST
22.1. 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 Contract, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
22.2. 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 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.
Express Energy Services, Inc. Page 8
23. NOTICES
23. 1. All notices, demands, requests or approvals to be given under the terms of
this Contract 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.
23.2. All notices, demands, requests or approvals from Contractor to City shall be
addressed to City at:
Attn: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
23.3. All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Doc Robert Rivers
Express Energy Services, Inc.
10610 Humbolt Street
Los Alamitos. CA 90720
24. NOTICE OF CLAIMS
Unless a shorter time is specified elsewhere in this Contract, before making its final
request for payment under the Contract Documents, 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. Contractor
and City expressly agree that in addition to all claims filing requirements set forth in the
Contract and Contract Documents, Contractor shall be required to file any claim Contractor
may have against City in strict conformance with the Government Claims Act (Govt. Code
§§ 900 of seq.).
25. TERMINATION
25.1. In the event that either party fails or refuses to perform any of the provisions
of this Contract at the time and in the manner required, that party shall be deemed in
default in the performance of this Contract. If such default is not cured within a period of
--tw(Y(2)z;alerrda" s, if�than two (2 calendardays are reaso byl 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
Express Energy Services, Inc. Page 9
non -defaulting party may terminate the Contract forthwith by giving to the defaulting party
written notice thereof.
25.2. Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Contract 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 Contract.
26. EFFECT OF CONTRACTOR'S EXECUTION
Execution of this Contract and all other Contract Documents by Contractor is a
representation that Contractor has visited the Project Site as defined by the Contract
Documents, has become familiar with the local conditions under which the Work is to be
performed, and has correlated all relevant observations with the requirements of the
Contract Documents.
27. STANDARD PROVISIONS
27.1. Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Contract.
27.2. 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.
27.3. 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.
27.4. 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 agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
27.5. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Contract and any other attachments attached hereto, the
terms of this Contract shall govern.
27.6. Interpretation. The terms of this Contract 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 Contract or any other rule of construction which
might otherwise apply.
Express Energy Services, Inc. Page 10
27.7. 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.
27.8. Severability. If any term or portion of this Contract is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Contract shall continue in full force and effect.
27.9. 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, State of
California.
27.10. 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.
27.11. No Attorney's Fees. In the event of any dispute or legal action arising under
this Contractor, the prevailing party shall not be entitled to attorneys' fees.
27.12. Counterparts. This Contract 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 and the same instrument.
[SIGNATURES ON NEXT PAGE]
Express Energy Services, Inc. Page 11
IN WITNESS WHEREOF, the parties have caused this Contract to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORN Y'S F ICE
Date: 9 � /
Aaron C.
City Attorney
ATTEST: 1. �' n
Date: �j
,wIrl maftm�
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: V-�.,
By:
Dave
City Manager
CONTRACTOR: Express Energy
Services, Inc. a California corporation
Date:
Signed in Counterpart
By:
Doc Robert Rivers
Chief Executive Officer
Signed in Counterpart
By:
Susan Michelle Rivers
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Single Source Selection Memorandum
Exhibit B — Proposal
Exhibit C — Insurance Requirements
Exhibit D — Labor and Materials Payment Bond
Exhibit E — Faithful Performance Bond
Express Energy Services, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Contract to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTON Y'S FFICE
Date: oZ 1/17
Aaron .City Attorney
—
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Dave Kiff
City Manager
CONTRACTOR: Express Energy
Services, I c. aPalifornia corporation
Date: i i �i X n 1, -1
By:
Doc Robert Rivers
Chief Executive Officer
Date: sl/ ) I .2-V) %
T
4-chiele Rivers
[END OF SIGNATURES]
Attachments: Exhibit A - Single Source Selection Memorandum
Exhibit B - Proposal
Exhibit C - Insurance Requirements
Exhibit D - Labor and Materials Payment Bond
Exhibit E - Faithful Performance Bond
Express Energy Services, Inc. Page 12
EXHIBIT A
SINGLE SOURCE SELECTION MEMORANDUM
Express Energy Services, Inc. Page A-1
MEMORANDUM
Date:
October 18, 2017
To:
David A Webb, Public Works Director
o�01t.j e
Dan Matusiewicz, Finance Director
U ` r
From:
Peter Tauscher, Senior Civil Engineer
°"<
FoV.
Subject:
Single Source Selection – Express Energy Service,
Public Works
Inc. for Installation LED Luminaires
Department
The citywide LED replacement project was recently completed, this project included
replacing 3,061 cobrahead street light fixtures throughout the City. Following the
completion of this project it was discovered 213 streetlights in the Irvine Terrace
Neighborhood were incorrectly labeled and not included with the citywide replacement
project. The City receives incentives including rebates and on -bill financing for energy-
efficient projects from Southern California Edison (SCE). These incentives for replacing
cobrahead street light fixtures are expiring December 31, 2017.
In order to meet the December 31, 2017 deadline Public Works will need to use a
contractor familiar with procuring and installing the luminaires, knowledge of City
standards, and understanding the SCE incentive requirements. Express Energy Service,
Inc. was the contractor who successfully replaced 3,061 street lights in the City, their
understanding of the project and the City ensures meeting the December 31, 2017
deadline.
The cost of for the procurement and installation of the 213 streetlights is $81,905.97 plus
$8,000.00 to cover unforeseen conditions, extra work and/or material quantities. Funding
is available in the current FY 2017-2018 CIP budget under the Streetlight Replacement
Program (01201927-980000-17V02).
BY: Date: t t X91 t�
Dave Kiff
OrM—Datu
Hager
BYDate:
siewicz
Finance Director
EXHIBIT B
PROPOSAL
Express Energy Services, Inc. Page B-1
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EXHIBIT C
INSURANCE REQUIREMENTS — PUBLIC WORKS AND CONSTRUCTION
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 Contract, 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 providing statutory benefits and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
employee 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. In addition, Contractor shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's Liability
Insurance in accordance with California law 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 certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its elected
or appointed officers, agents, officials, 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 and two million dollars
($2,000,000) completed operations 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
Express Energy Services, Inc. Page C-1
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this Contract,
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. Builder's Risk Insurance. For Contracts with property exposures during
construction, Contractor shall maintain Builders Risk insurance or an
installation floater as directed by City, covering damages to the Work for "all
risk" or special causes of loss form with limits equal to 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 City with
a copy of 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 Contract 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.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its elected or appointed officers, agents, officials, employees, and
volunteers shall be included as additional insureds under such policies.
C. Primary and Non Contributory. Contractor's insurance coverage shall be
primary insurance and/or the primary source of recovery with respect to City,
its elected or appointed officers, agents, officials, employees, and volunteers.
Any insurance or self-insurance maintained by City shall be excess of
Contractor's insurance and shall not contribute with it.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days notice of cancellation or nonrenewal of coverage (except for
nonpayment for which ten (10) calendar days notice is required) for each
required coverage except Builders Risk Insurance, which shall contain an
endorsement with said required notices.
Express Energy Services, Inc. Page C-2
5. Additional Aqreements 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. All of the executed
documents referenced in this Contract must be returned to City within ten (10)
regular City business days after the date on the "Notification of Award".
Insurance certificates and endorsements 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
Contract. City reserves the right to require complete, certified copies of all
required insurance policies, at any time.
B. City's Right to Revise Requirements. The City reserves the right at any time
during the term of the Contract to change the amounts and types of insurance
required by giving Contractor ninety (90) 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 Contract 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 Exhibit A are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not intended
by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type. If the Contractor maintains higher limits
than the minimums shown above, the City requires and shall be entitled to
coverage for higher limits maintained by the Contractor. Any available
Express Energy Services, Inc. Page C-3
proceeds in excess of specified minimum limits of insurance and coverage
shall be available to the City.
F. 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 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.
G. City Remedies for Non Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have the
right but not the obligation, to purchase such insurance, to terminate this
Contract, 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.
I. Coverage not Limited. All insurance coverage and limits provided by
Contractor and available or applicable to this Contract are intended to apply
to the full extent of the policies. Nothing contained in this Contract or any other
agreement relating to City or its operations limits the application of such
insurance coverage.
J. Coverage Renewal. Contractor will renew the coverage required here
annually as long as Contractor continues to provide any Work under this or
any other Contract or agreement with City. Contractor shall provide proof that
policies of insurance required herein expiring during the term of this Contract
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 with five (5) calendar days
of the expiration of the coverages.
Express Energy Services, 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: 12/7/17
Dept./Contact Received From: Raymund
Date Completed: 12/21/17 Sent to: Raymund By: Jan
Company/Person required to have certificate: Express Energy Services, Inc.
Type of contract: Public Works
I.
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 2/5/17 - 2/5/18
A. INSURANCE COMPANY: Landmark American Ins Co.
B. AM BEST RATING (A-: VII or greater): A+ XIV
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
D. LIMITS (Must be $1 M or greater): What is limit provided?
E. ADDITIONAL INSURED ENDORSEMENT — please attach
F. PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
G. ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
H. ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
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?
K. ELECTED SCMAF COVERAGE (RECREATION ONLY):
L. NOTICE OF CANCELLATION:
❑ Yes ® No
$1 M/$2M
® Yes ❑ No
® Yes ❑ No
® Yes ❑ No
® Yes ❑ No
® Yes ❑ No
❑ Yes
® No
® N/A ❑ Yes
❑ No
❑ N/A ® Yes
❑ No
11. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 2/5/17 - 2/5/18
A.
INSURANCE COMPANY: Allmerica Financial Benefit Ins.
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:
❑ N/A ❑ Yes ® No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes 0 No
III
WORKERS'COMPENSATION
EFFECTIVE/EXPIRATION DATE: 1/1/17 -1/1/18
A. INSURANCE COMPANY: ACE American Insurance Company
B. AM BEST RATING (A-: VII or greater): A++/ XV
C. ADMITTED Company (Must be California Admitted):
D. WORKERS' COMPENSATION LIMIT: Statutory
E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater)
F. WAIVER OF SUBROGATION (To include): Is it included?
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
H. NOTICE OF CANCELLATION:
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
12/21/17
Date
® Yes
❑ No
® Yes
❑ No
$2,000,000
® Yes
❑ No
® N/A ❑ Yes
❑ No
❑ N/A ® Yes
❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval needed due to GL carrier being non -admitted. 12/12/17 Risk Management
approved use of non -admitted carrier. Risk Management waived BR/IM requirement.
Approved:
Risk Management
* Subject to the terms of the contract.
Date
EXHIBIT D
CITY OF NEWPORT BEACH
BOND NO. 075054
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to Express
Energy Services, Inc. hereinafter designated as the "Principal," a contract for the
Improvement of Citywide LED Replacement located at Citywide LED Replacement, in the
City of Newport Beach, in strict conformity with the Contract on file with the office of the
City Clerk of the City of Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the terms
thereof require the furnishing of a bond, providing that if Principal or any of Principal's
subcontractors, shall fail to pay for any materials, provisions, orother supplies used in, upon,
for, or about the performance of the Work agreed to be done, or for any work or labor done
thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set
forth.
NOW, THEREFORE, We the undersigned Principal, and,
International Fidelity Insurance Company duly authorized to
transact business under the laws of the State of California, as Surety, (referred to herein as
"Surety") are held and firmly bound unto the City of Newport Beach, in the sum of Eighty
Nine Thousand Nine Hundred Five Dollars and 97/100 ($89,905.97) lawful money of the
United States of America, said sum being equal to 100% of the estimated amount payable
by the City of Newport Beach under the terms of the Contract; for which payment well and
truly to be made, we bind ourselves, our heirs, executors and administrators, successors,
or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the Work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts due
under the Unemployment Insurance Code with respect to such work or labor, or for any
amounts required to be deducted, withheld and paid over to the Employment Development
Department from the wages of employees of the Principal and subcontractors pursuant to
Section 13020 of the Unemployment Insurance Code with respect to such work and labor,
then the Surety will pay for the same, in an amount not exceeding the sum specified in this
Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable
aftomeys' fee, to be fixed by the Court as required by the provisions of Section 9554 of the
Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 9100 of the California Civil Code so as to
give a right of action to them or their assigns in any suit brought upon this Bond, as required
by and in accordance with the provisions of Sections 9500 et seq. of the Civil Code of the
State of California.
Express Energy Services, Inc. Page D-1
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the Work to be
performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby
waive notice of any such change, extension of time, alterations or additions to the terms of
the Contract or to the Work or to the specifications.
In the event that any principal above named executed this Bond as an individual, it
is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the 4th day of December 2019
Express energy Services, Inc.
Name of Contractor (Principal)
International Fidelity Insurance Company
Name of Surety
2999 Oak Rd., Ste. 820, Walnut Creek, CA 94599
Address of Surety
925-658-9252
Telephone
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Authorized Signature/Ti e
k_
Autn" rized Agent Signature
Kyle Wilson, Attorney -in -Fact
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR
AND SURETY MUST BE ATTACHED
Express Energy Services, Inc. Page D-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of Fresno ) ss.
On December 4 20 17 before me, Christine Bagetakos
Notary Public, personally appeared Kyle Wilson
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. CHRIsnNEBAGETAKos
Notary Public -California
Fresno County
Comm. Expires
Jun 372
My Comm Expires Jun 3, 2021
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ) ss.
On 6, 20 before me, /r ZAP
Notary Public, personally appeared 4)0 � . ig/ k_ R,'s
proved to me on the basis of satisfactory evidence to be the person whose namj is/at®
subscribed to the within instrument and acknowledged to me that he/s gy-executed the same
in his/hetThErir—authorized capacity(ie,$); and that by his/herf ior'signalures(s),en the instrument
the person("r the entity upon behalf of which the persons cted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State C lifornia that the foregoin
paragraph Is true and correct.
,-
.�
CHANG BOK LEE X
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,�
COMM. 97 CO
WITNESS m hand an official seal.
-re'A
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NOTARY PUBLIC-CALIFORNW
IC CA
ORANGE COUNTYIn
My Comm. Expires April 22, 2021
Signature
__
(seal)
Express Energy Services, Inc. Page D-3
Tel (973) 624-7200 POWER OF ATTORNEY N� �' `f �`
A
INTERNATIONAL FIDELITY INSURANCE COMPANY
ALLEGHENY CASUALTY COMPANY
ONE NEWARK CENTER, 20TH FLOOR NEWARK, NEW JERSEY 07102-5207
KNOW ALL MEN BY THESE PRESENTS: That INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under
the laws of the State of New Jersey, and ALLEGHENY CASUALTY COMPANY a corporation organizedand. existing under the taws of the Stale of
New Jersey, having. their principal office in the City of Newark, New Jersey, do hereby constitute and appoint
KIMBERLY WILSON, NICOLE CASKEY, WAYNE LAMB, KYLE WILSON
Fresno, CA. '
.,,., I-- den I .... fid o0nr W.l I„_f.pf in oyon, ao coal and rlauvor fnr and on Ifc hnhnlf as surety_ any and all bonds and`undertakinds, contracts of indemnity
COMPANY and ALLEGHENY CASUALTY COMPANY; as fully 'and amply, to all intents .and purposes, as If the same had. been dutyexecuted and
acknowledged by their regularly elected officers at their principal offices. yy� ry yy :..
COMPANY and ALLEGHENY CASUALTY COMPANY ands grranted underhand by authority of the ollowa g resolution adoptedNbyl the Board INSURANCE
of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 20th day of July, 2010 and by the Board of Directors of ALLEGHENY
CASUALTY COMPANY at a meeting duly held on the 15111 day of August, 2000; `.
".RESOLVED; that (1) the President, Vice President, Chief Executive Officer or Secretary of the Corporationshall havethe power to appoint, and to revoke
..the appointments of, Attorneys -in -Fact or agents with power and authority as defined or limited in their respective powers of attorney, and to execute on behalf
of the Corporation and affix .the Corporation's seal thereto bonds, undertakings; recognizances, contracts of Indemnity and other written obligations In the
nature thereof: or related thereto; and. (2) any such Officers of the.. Corp oration may appoint and revoke the appointments of joint -control custodians, agents
for eccepptance of process; and Attorneys -m fact with. authority to execute waivers and consents on behalf of the Corporation; and (3) the signature of any
such Officer of the Corporation and the. Corporation's seal may be affixed by facsimile to. any power of attorney or cer(ificahon given ffor the execution of any
bond undertaking, recognizance, contract of indemnity or other written obligpation in the nature thereof or related thereto, such sig9nature and seals when
so used whether heretofore or hereafter, being hereby adopted: by the Corporafion as the. original signature of such officer anig the original seal of the
:Corporation, to be valid and binding upon the Corporation with the same force. and effect as though manually affixed."
IN WITNESS WHEREOF, INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY have each executed and
attested these presents on this 31 sl day of December, 2015.
STATE OF my Esse
of W JERSEY V �ASOgtTYc
County w
19 1936
ROBERT W. MINSTER 4
Chief Executive Officer (International Fidelity. hEjy dER`'0.
Insurance Company) and President (Allegheny
Casualty Company)
On this 31st day of December 2015, before me came the individual who executed the preceding instrument, to me personally known, and, being by me duly
sworn, said he is the therein described and authorized officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY
COMPANY; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the said Corporate Seals and his signature were:
duly affixed by order of the Boards of Directors of said Companies.
IN TESTIMONY. WHEREOF, I have hereunto set myy hand affixed my Official Seal,
111, ,,,,,,, at the City of Newark, New Jersey the day and year first above written.
og��451oNF''�'•` V
Q . NOTARY
pUO�IC H/
NT;
..101 •.• A NOTARY PUBLIC OF NEW JERSEY
's,9TF'••;..:.. •• �Q-,�° My Commission Expires April 16,2019
OF NE`N"a
,',,/"•n... 010",
CERTIFICATION
I, the undersigned officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY do hereby certify that I have
compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set forth in said
Power of Attorney, with the originals on file in the home office of said companies, and that the same are correct transcripts thereof, and of the whole
of the said originals, and that the said Power of Attorney has not been revoked and is now in full force and effect.
IN TESTIMONY: WHEREOF, I have hereunto set my hand this 4th day of December 2017
MARIA BRANCO,'Assistant Secretary
EXHIBIT E
CITY OF NEWPORT BEACH
BOND NO. 0735054
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $ 1,341 being
at the rate of $ 1 s% thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to Express
Energy Services, Inc. hereinafter designated as the "Principal," a contract for the
Improvement of Citywide LED Replacement located at Citywide LED Replacement in the
City of Newport Beach, in strict conformity with the Contract on file with the office of the City
Clerk of the City of Newport Beach, which is incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute the Contract and the terms
thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
International Fidelity Insurance Company, duly authorized to
transact business under the laws of the State of California as Surety (hereinafter "Surety'),
are held and firmly bound unto the City of Newport Beach, in the sum of Eighty Nine
Thousand Nine Hundred Five Dollars and 97/100 ($89,905.97) lawful money of the
United States of America, said sum being equal to 100% of the estimated amount of the
Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which
payment well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well
and truly keep and perform any or all the Work, covenants, conditions, and agreements in
the Contract Documents and any alteration thereof made as therein provided on its part, to
be kept and performed at the time and in the manner therein specified, and in all respects
according to its true intent and meaning, or fails to indemnify, defend, and save harmless
the City of Newport Beach, its officers, employees and agents, as therein stipulated, then,
Surety will faithfully perform the same, in an amount not exceeding the sum specified in this
Bond; otherwise this obligation shall become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable expenses
and fees, including reasonable attorneys fees, incurred by the City, only in the event the City
is required to bring an action in law or equity against Surety to enforce the obligations of this
Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the Work to be performed
Express Energy Services, Inc. Page E-1
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
notice of any such change, extension of time, alterations or additions of the Contract or to
the Work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the Project
by the City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under this
Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the 4th day of December , 201,
Express Energy Services, Inc.
Name of Contractor (Principal)
International Fidelity Insurance Company
Name of Surety
2999 Oak Rd., Ste 820, Walnut Creek, CA 94597
Address of Surety
925-658-9252
Telephone
APPROVED AS TO FORM:
CITY ATT Q Y'S OFFICE
Date: II
By:
Aaron C. Harp
City Attorney
Auttorized Signature itle
ALithiprized Agent Signature
Kyle Wilson, Attorney -in -Fact
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF
CONTRACTOR AND SURETY MUST BE ATTACHED
Express Energy Services, Inc. Page E-2
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of Fresno } ss.
On December 4 20 17 before me, Christine Bagetakos
Notary Public, personally appeared Kyle Wilson
who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. CHRISTINE BAGETAKOS
Notary Public -California
_ - Fresno County
Commission200014
t_��/V✓tJM' / �� 'n--�-/%y My Comm. Expireser lun 3, 2021
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of ) ss.
On ,Oc' r V —� 20_Z 2_ before me,
Notary Public, personally appeared h„
proved to me on the basis of satisfactory evidence to be the person whose narrye(s) is/are-
subscribed to the within instrument and acknowledged to me that he/st}ehhey-txecuted the same
in his/h*-lth,* authorized capacity(ieA and that by his/hqr/their-signatures(s)-on the instrument
the personas} or the entity upon behalf of which the personLa)-acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws gf-th&State_ o is th�t the for,
paragraph is true an:n/d
co ect. CHANGANG B0
N COMM. #2188297
NOTARY PUBLIC -CALIFORNIA N
X ORANGE COUNTY 0
WITNESS han official eal. My comm. Explres April 22,2021
Signature (seal)
Express Energy Services, Inc. Page E-3
r V1r9L lix VI J%l 1 VIl\1wV 1'--
INTERNATIONAL FIDELITY INSURANCE COMPANY
ALLEGHENY CASUALTY COMPANY
ONE NEWARK CENTER, 20TH FLOOR NEWARK, NEW JERSEY 07102-5207
KNOW ALLMEN BY THESE PRESENTS: That INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under
the laws of the State of New Jersey, and ALLEGHENY CASUALTY COMPANY a corporation organized and. existing under the laws of the State of
New Jersey, having their principal. office in the City of Newark, New Jersey, do hereby constitute and appoint
KIMBERLY WILSON, NICOLE CASKEY, WAYNE LAMB, KYLE WILSON
Fresno, CA.
their true and lawful attorneys)-In-fact to execute seal and deliver. for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity
and other writings obligatory 1n the nature thereof, which are or may be allowed, required or. permitted by law, statute, rule, regulation, contract or otherwise
and the execution of such instrument(s1 in pursuance of. these presents, shall be as binding upon the said INTERNATIONAL FIDELITY INSURANCE
COMPANY and ALLEGHENY CASUALTY COMPANY, as fully and amply, to all intents and purposes, as If the same had been duly. executed and
acknowledged by their regularly elected offcerys at their principal offices.This Power of authority
By-Laws
is executed and
be revoked, pursuant to
of the
NTERNATIONAL
TY
SURANCE
f IINTERNATIONALF DELITY NS RANCE COMPANYdat a meet ng doeyaheld�.on the 20th day of Jy 2010 andllby he Board ofyD iectt os of ALLEGH NY
CASUALTY COMPANY at a meeting duly held on the 15th day of August; 2000;
"RESOLVED, that (1) the President, Vice President, Chief Executive Officer or Secretary of the Corporationshall have the power to appoint, and to revoke
the appointments of Attorneys in Fact or agents with power and authority as defined or limited in their respective powers of attorney, and to execute on behalf
of the Corporation and affix the Corporation's seal thereto, bonds, undertakings, recognlzances, contracts of Indemnity and other written obligations in the
.nature thereof r or related thereto; and (2) any such Officers of the Corporation may appoint and revoke the appointments of joint-control custodians, agents
for acceptance of process,' and Attorneys-in-fact with authority to execute waivers and consents on behalf of the Corporation; and I3) the signature of any -
- such Officer of the Corporation and the Corporation's seal may be affixed by facsimile to any power of. attorney or cerCifcation given or the execution of any
bond, undertaking, recognizance, contract of indemnity or other written obligation in the nature thereof or related thereto, such signature and seals when
so. used whether heretofore or hereafter, being hereby adopted by the. Corporation as the original signature of such officer andrthe original seal of the
Corporation, to be valid and binding upon the Corporation with the same force and effect as though manually affixed." "
IN WITNESS WHEREOF, INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY have each executed and
attested these presents on this 31st day of December. 2015. -
11YArN,I r STATE OF NEW JERSEY ay cASUAfTYc ..
County of Essex GZO 0
say,
19aa 4 1936
ROBERT W. MINSTER .
E✓/ y 111 Chief Executive Officer (International Fidelitty� NtyV JERsb I
Insurance Company)and President(Allegheny
. : Casualty Company)
On this 31st day of December 2015, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly.
sworn, said he is the therein described and authorized officer of INTERNATIONAL FIDELITY INSURANCE COMPANY and ALLEGHENY CASUALTY
COMPANY; that the seals affixed to said Instrument are the :Corporate Seals of said Companies; that .the said Corporate Seals and his signature were
duly affixed by order of the Boards of Directors of said Companies: '
IN TESTIMONY WHEREOF, I have hereunto set m hand affixed my Official Seal,
,``,.... „•,•••• at the City of Newark, New Jersey the day and year fYrst above written.
U.
NOTARY A
A NOTARY PUBLIC OF NEW JERSEY
9r'• °q ro-au�° Co
QMy Commission Expires April 16, 2019
FOF NEW '
'r•„••,,.,r,,,,r.,a••• CERTIFICATION
I, the undersigned officer. of. INTERNATIONAL FIDELITY INSURANCE COMPANY. and ALLEGHENY CASUALTY COMPANY do hereby certify that I have
compared the foregoing copy of .the Power of Attorney and affidavit, and the copy of the Sections of the By-Laws of said Companies as set forth in said
Power of Attorney, with the originals on file in. the home office of said companies, and that the same are correct transcripts thereof, and of the whole
of the said originals, and that the Said Power of Attorney has not been revoked and is now in full force and effect.
IN TESTIMONY` WHEREOF I have hereunto set my hand this 4th day of
December 2017
MARIABRANCO, Assistant Secretary