Loading...
HomeMy WebLinkAboutC-7960-1 - On-Call M/RSA for Heating, Ventilation and Air Conditioning Maitnenance and Repair Services, Amendment No. 11 AMENDMENT NO. ONE TO ON -CALL MAINTENANCE/REPAIR SERVICES AGREEMENT V WITH WESTERN ALLIED CORPORATION FOR HEATING, VENTILATION AND AIR CONDITIONING MAINTENANCE & REPAIR SERVICES THIS AMENDMENT NO. ONE TO ON -CALL MAINTENANCE/REPAIR SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 8th day of September, 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and WESTERN ALLIED CORPORATION, a California corporation ("Contractor"), whose address is 12046 E. Florence Avenue, Santa Fe Springs, CA, 90670, and is made with reference to the following: RECITALS A. On February 8, 2021, City and Contractor entered into an On -Call Maintenance/Repair Services Agreement ("Agreement") to engage Contractor to perform on -call maintenance and/or repair services for City ("Project"). B. Since entering into the Agreement, Contractor was asked to perform a higher volume of Work than was originally anticipated. C. The parties desire to enter into this Amendment No. One to update the Billing Rates, increase the total compensation, and update the administration and notices sections. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONTRACTOR Exhibit B to the Agreement shall be amended in its entirety and replaced with the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference. 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 Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except as otherwise provided herein, no rate changes shall be made during the term of this Agreement without the prior written approval of City. Contractor's compensation for all Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Two Hundred Forty Thousand Dollars and 00/100 ($240,000.00), without prior written amendment to the Agreement." 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 subconsultant fees, in an amount not to exceed One Hundred Twenty Thousand Dollars and 00/100 ($120,000.00). 2. ADMINISTRATION Section 6 of the Agreement is amended in its entirety and replaced with the following: "This Agreement will be administered by the Library Services Department. City's Circulation and Technical Processing Coordinator 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." 3. NOTICES Section 25.3 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: Mike Gallagher Western Allied Corporation 12046 E. Florence Avenue Santa Fe Springs, CA 90670" 4. 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] Western Allied Corporation 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 ATTORtJEYS OFFICE Date: `? Z / 2.2 CITY OF NEWPORT BEACH, a California municipal corporation Date: By- 7'r y A n C. ��'� Kevin City Attorney Mayo ATTEST: Date. 1, b'`. o. i(I v �l� ,2 c By: IG 0.4wr). — Leilani I. Brown City Clerk \�F0RN/ Attachments CONSULTANT: WESTERN ALLIED CORPORATION, a California corporation Date: (,) ,-'10 . I By: _ t (nA-)--- Michael Gallagher Chief Executive Officer Date: jo -Zb 2Z— By: Geoffrey Juwono Secretary [END OF SIGNATURES] Exhibit B - Schedule of Billing Rates Western Allied Corporation Page 3 EXHIBIT B SCHEDULE OF BILLING RATES Western Allied Corporation Page B-1 EXHIBIT B SCHEDULE OF BILLING RATES Recurring Maintenance Services HVAC Maintenance Services $2,915 $34,980 (All Units) every month every year Although the Scope of Services lists certain monthly, bi-monthly, semi-annual and annual tasks based on AC unit, the rates above represent a flat annual and monthly rate for recurring maintenance services. The City expects to be billed on a regular (monthly) basis even though specific tasks may fall under different intervals. On -Call Repair Services On -Call HVAC Repair Services (Regular Hours: 7:00am to 4:00pm) $164/hour On -Call HVAC Repair Services (After Hours) $246/hour Parts Markup: List Less 10% Pricing provided shall include any and all labor; materials; equipment; supervision; travel and expenses; Prevailing Wage; bonding; and insurance to provide the services described in this RFP solicitation. 0 4 Nj 4:- CD Cl) ON -CALL MAINTENANCE/REPAIR SERVICES AGREEMENT WITH WESTERN ALLIED CORPORATION FOR HEATING, VENTILATION AND AIR CONDITIONING MAINTENANCE & REPAIR SERVICES THIS ON -CALL MAINTENANCE/REPAIR SERVICES AGREEMENT ("Agreement") is made and entered into as of 8th day of February, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and Western Allied Corporation, a California corporation ("Contractor"), whose address is 12046 E. Florence Avenue, Santa Fe Springs, California 90670, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to perform on -call maintenance and/or repair services for City ("Project"). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the maintenance and/or repair services described in this Agreement. D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by City for the Project, is familiar with all conditions relevant to the performance of services, and has committed to perform all work required for the compensation specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on February 7, 2024, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Contractor shall perform the on -call services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Upon written request from the Project Administrator as defined herein, Contractor shall provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal"). The Letter Proposal shall include the following: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; and 2.1.3 The estimated number of hours and cost to complete the Services; 2.1.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein, not later than two (2) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. 4. COMPENSATION TO CONTRACTOR 4.1 City shall pay Contractor for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except as otherwise provided herein, no rate changes shall be made during the term of this Agreement without the prior written approval of City. Contractor's compensation for all Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed One Hundred Twenty Thousand Dollars and 001100 ($120,000.00), without prior written amendment to the Agreement. Western Allied Corporation Page 2 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 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 and the Letter Proposal, 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 and the Letter Proposal. 5. PROJECT MANAGER 5.1 Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Michael Gallagher 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 Library Services Department. City's Branch and Youth Services Coordinator 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 Western Allied Corporation Page 3 relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Contractor's Work schedule. 8. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 8.1 Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed or utilized unless approved in advance and in writing by the Project Administrator. 8.2 All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws and legally recognized professional standards. 8.3 Contractor represents and warrants to City that it has, shall obtain and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, 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, Western Allied Corporation Page 4 volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.4 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. 9.5 Contractor shall perform all Work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Work by Contractor or its agents. 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 Western Allied Corporation Page 5 this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with Contractor on the Project. 12. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Contractor is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. BONDING 15.1 For any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement: (1) a Labor and Materials Payment Bond in the amount of one hundred percent (100%) of the total amount to be paid Contractor as set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), and in the form attached hereto as Exhibit D which is incorporated herein by this reference; and (2) a Faithful Performance Bond in the amount of one hundred percent (100%) of the total amount to be paid Contractor as set forth in any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), and in the form attached hereto as Exhibit E which is incorporated herein by this reference. 15.2 The Labor and Materials Payment Bond and Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) Western Allied Corporation Page 6 listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. 15.3 Contractor shall deliver, concurrently with City's approval of any Letter Proposal over Twenty Five Thousand Dollars and 00/100 ($25,000.00), the Labor and Materials Payment Bond and Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 16. PREVAILING WAGES 16.1 Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 16.2 Unless otherwise exempt by law, Contractor warrants that no contractor or subcontractor was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Contractor further warrants that it is currently registered and qualified to perform "public work" pursuant to California Labor Code section 1725.5 or any successor statute thereto and that no contractor or subcontractor will engage in the performance of the Services unless currently registered and qualified to perform public work. 17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint -venture or syndicate or cotenancy, which shall result in changing the control of Western Allied Corporation Page 7 Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 18. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A and the Letter Proposal. Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 19. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party. Contractor shall, at Contractor's expense, provide such Documents to City upon prior written request. 20. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 21. RECORDS Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. Western Allied Corporation Page 8 22. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et sea., Contractor shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Branch and Youth Services Coordinator Library Services City of Newport Beach 100 Civic Center Drive Western Allied Corporation Page 9 PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Michael Gallagher Western Allied Corporation P.O. Box 3628 Santa Fe Springs, CA 90670 26. CLAIMS 26.1 Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 26.2 To the extent that Contractor's claim is a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, the Parties agree to follow the dispute resolution process set forth therein. Any part of such "Claim" remaining in dispute after completion of the dispute resolution process provided for in Public Contract Code section 9204 or any successor statute thereto shall be subject to the Government Claims Act requirements requiring Contractor/Consultant to file a claim in strict conformance with the Government Claims Act. To the extent that Contractor's claim is not a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, Contractor shall be required to file such claim with the City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Western Allied Corporation Page 10 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. LABOR 28.1 Contractor shall conform with all applicable provisions of state and federal law including, but not limited to, applicable provisions of the federal Fair Labor Standards Act ("FLSA") (29 USCA § 201, et seq.). 28.2 Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give written notice to City, and provide all relevant information. 28.3 Contractor represents that all persons working under this Agreement are verified to be U.S. citizens or persons legally authorized to work in the United States. 28.4 To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees from loss or damage, including but not limited to attorneys' fees, and other costs of defense by reason of actual or alleged violations of any applicable federal, state and local labor laws or law, rules, and/or regulations. This obligation shall survive the expiration and/or termination of the Agreement. 29. STANDARD PROVISIONS 29.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. 29.2 Compliance with all Laws. Contractor shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. Western Allied Corporation Page 11 29.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 29.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 29.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 29.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 29.10 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 29.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Western Allied Corporation Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 2— �Z By: Aakon C. Harp ' City Attorney ATTEST: Date: /i o By: r. /'! 9X, , /' Leilani I. Brgv?rn City Clerk /ok } CITY OF NEWPORT BEACH, a California mun.cipal corporation Date: 24 �.. By: Gr . Leung Ci anager CONTRACTOR: Western Allied Corporation, a California corporation Date: 8 -It - 2z By: 1 (0 4 L Michael Gallaghe Chief Executive Officer Date: (�- � r 2Z By: g�edff Juwono Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Exhibit D — Labor and Materials Payment Bond Exhibit E — Faithful Performance Bond Western Allied Corporation Page 13 EXHIBIT A SCOPE OF SERVICES Summary of Work: Contractor's Work pursuant to this Agreement shall be limited to the City's Central Library (1000 Avocado Avenue) and Mariners Branch (1300 Irvine Avenue), hereby referred to as "the Facilities". This Scope of Services shall indicate the current HVAC system components currently installed at the Facilities, as well as tasks related to (1) recurring maintenance and (2) on -Call repairs. Equipment Lists This section contains a listing of HVAC units and components installed at: (1) Central Library; (2) Central Library Annex Wing; and (3) Mariner's Branch. Table.A: Central Libra AC-01 Air Chilled Cooler' Carrier 30XAA1606P AC-02 Air Handling Unit with Return Fan Carrier 39NX49L AG-03 Air Handling Unit with Return Fan Carrier 39NX49L AC-04 Heat Pump Packaged Unit Carrier 50QJ012 AC-05 Heat Pump Packaged Unit' Carrier 50QJ012 AC-06 Heat Pump Packaged Unit Carrier 50QJ005 AC-07 Heat Pump Packaged Unit Carrier 50QJ005 AC-08 Heat Pump Packaged Unit Carrier 50QJ005 AC-09 1.5-Ton Mini -Mate Server Room Unit Liebert MME018A AC-10 Boiler (Condensing Type) Raypak H7-1505 AC-11 Exhaust Fan Greenheck AC-12 Exhaust Fan Greenheck AC-13 ` Exhaust Fan Greenheck AC-14 Exhaust Fan Greenheck AC-15 Exhaust Fan Greenheck AC-16 Exhaust Fan Greenheck AC-17 Exhaust Fan Greenheck AC-18 Exhaust Fan Greenheck AC-19 Pump Bell & Gossett AC-20 Pump Bell & Gossett AC-21 Pump Bell & Gossett AC-22 Pump Bell & Gossett AC-23 Variable Speed Drive AC-24 Variable Speed Drive AC-25 Variable Speed Drive AC-26 Variable Speed Drive *Notes* Each 39NX air handling unit requires the following air filters: (16) 24x24x2 and (12) 24x12x2 MERV 8 prefilters quarterly (16) 24x24x6 and (12) 24x12x6 MERV 13 final filters annual Western Allied Corporation Page A-1 50QJ012 requires two 20x25x2 and two 16x25x2 each per quarter 50QJ005 requires two 16x25x2 each per quarter B Central Library Annex Win AC-27 Air Cooled'Condensin" Unif , , g Aaon I, CC-B-017 AC-28 Air Handling Unit with VFD Alliance AC29 Multi Condensing Unif Mitsubishi. Ci ` PURY P120TJMU AC-30 Multi -Fan Coil Unit Mitsubishi City AG-31 Multi -Fan Coil Unit Mitsubishi City AC-32 Multi -Fan Coil Unit Mitsubishi Ci AC-33 DuctlessSplit System Mitsubishi AC-34 Cabinet Fan (Condensing Unit Room Exhaust) Greenheck *Notes* The Alliance air handling unit requires (3) 24x24x2 and (3) 24x12x2 MERV 8 airfilters quarterly. The three Mitsubishi fan coils require a total of (7) '14242 and (1) 14x30x2 M ERV 8 air filters per quarter. Mariner's Branch AC=4? AC-48 AC-49 AC-50 AC ;51 AC-52 AG=53 Ar;-54 AG-55 AC-56 AC=57 AC-58 AC-59 Western Allied Corporation Page A-2 AC-61 4-Pipe Fan Coil Unit AC-62 4-Pipe Fan Coil Unit AC-63 4-Pipe Fan Coif Unit AC-64 4-Pipe Fan Coil Unit AC-65 4-Pipe Fan Coil Unit AC-66 4-Pipe Fan Coil Unit "Notes" The outside air AHU filters are washable and must be washed quarterly. The fan coil units require the following air filters: High Ceiling (twice per year; requires boom access): (16) 16x20x2; (4) 20x20xl Low Ceiling four times per year): 18 16x20x2; 8 20x20xl 1. Scope of Services — Quarterly Recurring Maintenance Services Contractor's specific tasks for quarterly inspection and maintenance, based on unit type: UNIT TYPE SERVICE Air Handling Units Replace air filters; check belt tightness and adjust as necessary; check for a clear drain pan and unobstructed condensate drainage; lubricate (where appropriate) bearings and damper bushings. Check heating and cooling valve operation. Confirm proper economizer operation. Check motor starter operation and contactors. Please note that the air filters for the Mariner's Library outside air unit are washable, and must be washed quarterly. Packaged AC Units Replace air filters; check belt tightness and adjust as necessary; check for a clear drain pan and unobstructed condensate drainage; lubricate where appropriate bearings and damper bushings. Check heating and cooling operation; check contactor condition; verify proper thermostat operation. Check for signs of refrigerant or oil leakage. Verify proper refrigerant operating pressures. Confirm proper economizer operation. Split Systems Replace air filters; check for a clear drain pan and unobstructed condensate drainage; lubricate where appropriate. Check heating and cooling operation; check contactor condition; verify proper thermostat operation. Check for signs of refrigerant or oil leakage. Veri proper refrigerant operating ressures. Chillers Check for signs of refrigerant or oil leakage. Verify proper operation , and set points. Confirm that crankcase heaters are operational. Observe Western Allied Corporation Page A-3 refrigerant sight glass and crankcase oil level. For the Mariner's library chiller only, a quarterly EPA/SCAQMD refrigerant leak check is required. For the Main Library chiller only, condenser coil washing is required quarterly. Evaporative Condensers Check belt tightness and adjust as necessary; lubricate appropriate bearings; check sump water level and adjust float; check and adjust bleed; check fill and eliminator condition; check fan cycling control and adjust as required; check fan starter and contactors. Boilers Check operation vs. computer set points. Verify proper flame. Confirm safeties. Verify air cushion in expansion tank and adjust as required. At Central Library, replace condensing boiler's intake air filter. At Mariner's library, clean boiler intake air filters. Water Pumps Check for unusual vibration or sound; check for seal or grease leakage; check bearing housing temperature. 2. Scope of Services — Annual Recurring Maintenance Services Contractor's specific tasks for annual inspection and maintenance, based on unit type: UNIT TYPE SERVICE Air Handling Units Perform quarterly tasks. Replace fan belts in both supply and return fans. Wash cooling coils. Wash aluminum outdoor air filters. Variable Speed Drives For each variable speed drive, perform an annual service including alarm review, cleaning, set point calibration and adjustment, and safety cutout checks. Packaged AC Units Perform quarterly tasks. Replace fan belts. Wash cooling coils. Wash condenser coils. Wash aluminum outside air filters. Split, Systems Perform quarterly tasks. Wash condenser coils. Chillers Perform quarterly tasks. Perform SCAQMD / EPA refrigerant audit. Take oil samples for laboratory spectroanalysis for all refrigeration circuits. Wash air cooled chiller condenser coils (Main Library) with water and an EPA approved coil cleaner. Check pumpdown cycle operation for each refrigeration circuit. Check temperature, operation, and safety circuits of all chillers. Western Allied Corporation Page A-4 Evaporative Condensers Drain sump. Shovel sump and flush. Pressure wash eliminators. Replace float and make-up valve. Replace fan belts. Refill system. Start up; bleed excess air; adjust for proper operation. Boilers Perform quarterly tasks. Brush tubes. Clean burners. Blow out fire box. Inspect fire brick and insulation. Inspect flue. Calibrate and adjust sensors and controls as required. For non -condensing boilers (Mariner's Library), replace air filter, hot surface ignitors and flame sensors. For condensing boilers (Main Library), replace acid neutralization canister in condensate drain line. Water Pumps Perform quarterly tasks. Check deadhead operation. For base mounted pumps, shut down motor and perform bump test on pump and motor shafts. Exhaust Fans Check for unusual vibration or sound. Replace fan belt. Digital Communicating Inspected and calibrated. Thermostats & Wall Temperature Sensors 3. Scope of Services — Misc. Provisions for Recurring Maintenance • Once per quarter (four times per year), the Contractor will perform an assessment and report of all thermostat set points and occupancy schedules, and upon request provide this information to the Project Manager. • Once per year at the Central Library and Mariner's Branch a DDC device check will be performed by the Contractor. One person will remain at the computer front end while a second person with a radio or cell phone will travel within the building from device to device. The person at the front end will cause each device to function in turn, and the verification person will observe and verify proper operation of each device. At the same time, calibration of temperature and pressure sensors will be checked and adjusted. Upon request, a report will be provided to the Project Manager. • Please note that the Mariner's Branch has 6 belt drive fan coil units (Trane model BCHC) located in the building's high ceiling area with safe ladder access not possible. Access requires use of an articulated boom lift ("knuckle boom") and removal of the library security entrance central turnstile so the lift may be driven into the Library and back to the area of limited access. This must be coordinated at least two weeks in advance with Library personnel. The City will remove and replace the turnstile; the Contractor is responsible for providing and operating the lift. Due care must be taken by the contractor in operating the lift. Any damage to bookshelves, books or Western Allied Corporation Page A-5 other library fixtures or contents is the financial responsibility of the Contractor. • The maintenance for all air handlers and fan coil units in Mariner's branch is quarterly except for those requiring use of the knuckle boom; maintenance for those 6 units is twice per year. • The Contractor shall furnish MERV 8 air filters for all units, except for the Central Library (see equipment list for the exceptions). The Contractor is responsible for transporting the filters to the site and for disposing of the filters. Where available, the contractor may use City dumpsters. Filter changes will be quarterly, except for the high efficiency final filters at the Central Library. Please note that the air filters for the Mariner's branch outside air unit are washable, and must be washed quarterly. • Monthly water treatment, consisting of scale inhibitor and biocide, will be provided for the evaporative condensers at the Mariner's branch. The controller, pumps, solenoid and sensors will be checked, and chemical level in the drum monitored. Closed loop water treatment will be monitored and provided monthly for the chilled and hot water closed loops at the Mariner's branch and the Main Library. All chemicals needed for normal service maintenance are to be included as a part of this contract. • Condenser coil cleaning for all air cooled HVAC equipment (packaged units, split systems and air cooled chillers) shall be performed by using hoses, water, and an EPA approved coil cleaner. Please note that the buildings do not have hose bibs on the roof, and that hoses must be run up the side of the building from significant distances. This contract requires that the condenser coils be cleaned annually at all buildings listed, except for the air cooled chiller at the Central Library, where experience has shown that quarterly washing is required due to salt corrosion. • The cooling coils in all air handling units and packaged HVAC units will be washed with water and an EPA approved coil cleaner, and the condensate drain pans and drain lines flushed, once per year. 4. Scope of Services — On -Call Repairs • HVAC systems and components may require repair or replacement services. If needed, City will engage Contractor via letter proposal to perform specific projects. Regular working hours shall be defined as 7:OOam to 4:OOpm on weekdays. Western Allied Corporation Page A-6 EXHIBIT B SCHEDULE OF BILLING RATES Recurring Maintenance Services HVAC Maintenance Services $2,499 $299988 (All Units) every month every year Although the Scope of Services lists certain monthly, bi-monthly, semi-annual and annual tasks based on AC unit, the rates above represent a flat annual and monthly rate for recurring maintenance services. The City expects to be billed on a regular (monthly) basis even though specific tasks may fall under different intervals. On -Call Repair Services On -Call HVAC Repair Services $1491hour (Regular Hours: 7:00am to 4:00pm) On -Call HVAC Repair Services $223.50/hour (After Hours) Parts Markup: List Less 10% Pricing provided shall include any and all labor; materials; equipment; supervision; travel and expenses; Prevailing Wage; bonding; and insurance to provide the services described in this RFP solicitation. Western Allied Corporation Page B-1 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 V11 (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance,, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented Western Allied Corporation Page C-1 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of Western Allied Corporation Page C-2 insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 203804'13. 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, 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. Western Allied Corporation Page C-3 G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Contractor's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Western Allied Corporation Page C-4 EXHIBIT D CITY OF NEWPORT BEACH BOND NO. LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," an agreement for maintenance and/or repair services, in the City of Newport Beach, in strict conformity with the Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Agreement and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the Work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety") are held and firmly bound unto the City of Newport Beach, in the sum of Dollars { }, lawful money of the United States of America, said sum being equal to 100% of the amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), payable by the City of Newport Beach under the terms of the Agreement; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the Work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorneys' fee, to be fixed by the Court as required by the provisions of Section 9554 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 9100 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as Western Allied Corporation Page D-1 required by and in accordance with the provisions of Sections 9500 et seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement or to the Work to be performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the Agreement or to the Work or to the specifications. In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the day of , 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Western Allied Corporation Page D-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of )SS. On , 20 before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of )SS. On , 20 before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose 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. Signature (seal) Western Allied Corporation Page D-3 EXHIBIT E CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ , being at the rate of $ thousand of the Agreement price. WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," an agreement for maintenance and/or repair services in the City of Newport Beach, in strict conformity with the Agreement on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Agreement.and the terms thereof require the furnishing of a Bond for the faithful performance of the Agreement. NOW, THEREFORE, we, the Principal, and , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of Newport Beach, in the sum of } lawful money of the United States of America, said sum being equal to 100% of the amount of any Letter Proposal accepted by City of over Twenty Five Thousand Dollars and 00/100 ($25,000.00), to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the Work, covenants, conditions, and agreements in the Agreement and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by City, only in the event City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Agreement or to the Work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive Western Allied Corporation Page E-1 notice of any such change, extension of time, alterations or additions of the Agreement or to the Work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 Name of Contractor (Principal) Name of Surety Address of Surety Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: am Aaron C. Harp City Attorney Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Western Allied Corporation Page E-2 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of )SS. On , 20 before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of )SS. On , 20 before me, , Notary Public, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) Western Allied Corporation Page E-3 sit Insured i Name. Western Allied Corporation n Account Number: 16724 Address: P.O. Box 3628, Santa Fe Springs, CA, 90670 i i Status: Currently in Compliance. i i ! .a_,,,T. __ __�___ ___,__.., _____.. ____._ . _ _e.__.._ __ . � Insured Business Unit(s) Print Insured Info Account Information ' I Account Number: 16724 Risk Type: Maintenance/Repair Services Agreement Do Not Call: Address Updated: ..,.__..-______._..- Address Information 3 Mailing Address Western Allied Corporation P.O. Box 3628 Physical Address Western Allied Corporation 12046 Florence Avenue Santa Fe Springs CA 90670