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HomeMy WebLinkAboutC-8674-2 - Assignement Agreement (for M/RSA for Civic Center Chiller Maintenance and Repair)ASSIGNMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND SOUTHLAND INDUSTRIES THIS ASSIGNMENT AGREEMENT ("Assignment") is made and entered into as of this 9th day of March, 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), ENVISE, a California corporation ("Assignor"), whose address is 12131 Western Avenue, Garden Grove, California 92841, and SOUTHLAND INDUSTRIES, a California corporation ("Assignee"), whose address is 12131 Western Avenue, Garden Grove, California 92841, and is made with reference to the following: RECITALS A. On March 23, 2021, City and Envise, a California corporation entered into a Maintenance/Repair Services Agreement ("Agreement") to engage Contractor to perform fixed and on -call maintenance and repair services for Civic Center Chiller and related equipment ("Project"). B. On September 14, 2021, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not included in the Agreement, and to increase the total compensation. C. The parties desire to enter into this Assignment to assign the rights under the Agreement from Envise to Southland Industries, amend the Notices section of the Agreement, and update the bonds and insurance as required by the Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: ASSIGNMENT As of the Effective Date, Southland Industries hereby accepts such assignment and hereby assumes, agrees and undertakes to perform all obligations of Envise pursuant to the Agreement as of the Effective Date. Any reference to Envise and/or Contractor in the Agreement, shall be deemed to be a reference to Southland Industries. As of the Effective Date, Envise shall have no further rights of any kind whatsoever under the Agreement. 2. NOTICES Section 26.3 of the Agreement is amended in its entirety and replaced with the following: Southland Industries 12131 Western Ave Garden Grove, CA 92841 Attn: Craig Gonzalez 3. CITY CONSENT TO ASSIGNMENT Pursuant to Section 18 of the Agreement, City approves of this Assignment. 4. BONDS Assignee shall deliver, concurrently with execution of this Assignment, a Labor and Materials Payment Bond and a Faithful Performance Bond, in accordance with Section 15 of the Agreement, in the form attached hereto as Exhibit A and Exhibit B, respectively, each of which is incorporated herein by this reference. 5. INSURANCE Assignee shall deliver, concurrently with execution of this Assignment, proof of insurance in accordance with Section 14 of the Agreement. 6. 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] Southland Industries Assignment Agreement Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement on the date first above written. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: / a-3 By: "� M4 (�a) A r n C. Harp Ci y Attorney ATTEST: Date: diiLao33 By: � gu� 4 Leilani I. Bro n City Clerk CITY OF NEWPORT BEACH, a California icipal corporation Date: 6 /1- 120z3 By- Ge&5KK Leung Manager ASSIGNOR: ENVISE, a California corporation Date: Signed in Counterpart Bv: Theodore Docharty Lynch Chief Executive Officer Date: Signed in Counterpart Bv: Rebecca Jeanne Reyes Secretary ASSIGNEE: SOUTHLAND INDUSTRIES, a California corporation Date: Signed in Counterpart Bv: Theodore Docharty Lynch Chief Executive Officer Date: Signed in Counterpart Bv: Rebecca Jeanne Reyes Secretary [END OF SIGNATURES] Attachments: Exhibit A — Labor and Materials Payment Bond Exhibit B — Faithful Performance Bond Southland Industries Assignment Agreement Page 3 IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement on the date first above written. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Y t A r n C. Harp Ci y Attorney ATTEST: Date: In Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager ASSIGNOR: ENVISE, a California corporation Date: By: '04 Theodore Docharty Lynch—" Chief Exe utiv Officer Date: 51/0 %203 By: vjzezo'�A . I zi� Rebecca Jeann R yes Secretary ASSIGNEE: SOUTHLAND INDUSTRIES, a California corporation Date: By: �7� &6<j2==_ Theodore Docharty Lynch Chief Executive Officer Date: 5110hA 1-s By: GCr� Rebecca Jeanne R y s Secretary [END OF SIGNATURES] Attachments: Exhibit A — Labor and Materials Payment Bond Exhibit B — Faithful Performance Bond Southland Industries Assignment Agreement Page 3 CITY OF NEWPORT BEACH BOND NO. K41719370 LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to Southland Industries hereinafter designated as the "Principal," an assignment agreement for fixed and on -call maintenance and repair services for the Civic Center Chiller and related equipment, 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, Federal 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 Fifty Thousand Four Hundred Ninety Dollars and 751100 ($50,490.75), lawful money of the United States of America, said sum being equal to 100% of the amount of the annual Agreement price, 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 required by and in accordance with the provisions of Sections 9500 et seq. of the Civil Code of the State of California. Southland Industries Assignment Agreement Page A-1 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 12th day of May _ 2023 Southland Industries 12131 Western Ave., Garden Grove, CA 92841 Name of Contractor (Principal) Federal Insurance Company Name of Surety 202E Hall's Mill Road Whitehouse Station, NJ 08889 Address of Surety (215) 640-1000 Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp 4.1- Zs w4c, City Attorney Authorized Signature Tony Wang, CFO Authorized Agent Signature Ag&�2� -- Print Nam and Title Rebecca S. Lea! Attorney -in act NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Southland Industries Assignment Agreement Page A-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 Orange } ss. On May 16 20 23 before me, Chrystal Palacios, Notary Notary Public, personally appeared Tony Wang who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. CHRYSTAL PALACIOS W Notary Public - Californian ' Orange County Commission # 2405641 +e,voa•`' My Comm. Expires May 25, 2026 (seal) State of )Otdd(lLtCNa Missouri County of Jackson ) SS. On May 12 20 23 before me, Amy S. Fulton Notary Public, personally appeared Rebecca S. Leal 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. Missouri I certify under PENALTY OF PERJURY under the laws of the State of data that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature - Public AMY S. FULTON Notary Public -Notary Seal STATE OF MISSOURI Jackson County Commission Expires 8/22/2025 Commission # 21684076 Southland Industries Assignment Agreement Page A-3 EXHIBIT B CITY OF NEWPORT BEACH BOND NO. K41719370 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 389.00 , being at the rate of $ 7.70 per thousand of the Agreement price. WHEREAS, the City of Newport Beach, State of California, has awarded to Southland Industries hereinafter designated as the "Principal," an assignment agreement for fixed and on -call maintenance and repair services for the Civic Center Chiller and related equipment, 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 Federal 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 Fifty Thousand Four Hundred Ninety Dollars and 75/100 ($50,490.75), lawful money of the United States of America, said sum being equal to 100% of the amount of the annual Agreement price, 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 Southland Industries Assignment Agreement Page B-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 12th day of May , 2023 . Southland Industries 12131 Western Ave., Garden Grove, CA 92841 Name of Contractor (Principal) Federal Insurance Company Name of Surety 202B Hall's Mill Road Whitehouse Station, NJ 08889 Address of Surety (215) 640-1000 Telephone APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: a on C. Harp v •-7•zz wc. Ci y Attorney Authorized Signature/Title Tony Wang, CFO Authorized Agent Signature rP int Name Title Rebecca S. Leal Attorney -in -Fact NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED Southland Industries Assignment Agreement Page B-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 Orange ___}SS On May 16 20 23 before me Chrystal Palacios, Notary Notary Public, personally appeared Tony Wang 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. 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. 1 Signature ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. *my CHRYSTAL PALACIOS Notary Public - California Orange County F Commission # 2405641 Comm. Expires May 25, 2026 (seal) State of (39WMW< Missouri County of Jackson } SS. On May 12 20 23 before me, Amy S. Fulton Notary Public, personally appeared Rebecca S. Leal 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. Missouri I certify under PENALTY OF PERJURY under the laws of the State of EX0=0 that the foregoing paragraph is true and correct. WITNESS my hand and official seal. + ry P S. FUl70Nc Rc� ary ublic-tJotdry meal STATE OF MISSOURI Jackson County Signature �Ay rnWglfpn Expires 8122,2025 commission # 216W75 Public Southland Industries Assignment Agreement ���� Page B-3 C H U B B Power of Attorney Federal Insurance Company I Vigilant Insurance Company I Pacific Indemnity Company Westchester Fire Insurance Company ( ACE American Insurance Company Know All by These Presents, that FEDERAL INSURANCE COMPANY, an Indiana corporation, VIGILANT INSURANCE COMPANY, a New York corporation, PACIFIC INDEMNITY COMPANY, a Wisconsin corporation, WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY corporations of the Commonwealth of Pennsylvania, do each hereby constitute and appoint Christy M. Braile, Danielle R. Capps, Jeffrey C. Carey, Mary T. Flanigan, Tahitia M. Fry, C. Stephens Griggs, Erin C. Lavin, Veronica Lawver, Rebecca S. Leal, Charissa D. Lecuyer, Kellie A. Meyer, Patrick T. Pribyl, Debra J. Scarborough, Lauren Scott, Hillary D. Shepard, Evan D. Sizemore and Kristin D. Thurber of Kansas City, Missouri ----------------------------------------------------------- each as their true and lawful Attorney -in -Fact to execute under such designation in their names and to affix their corporate seals to and deliver for and on their behalf as surety thereon or otherwise, bonds and undertakings and other writings obligatory in the nature thereof (other than bail bonds) given or executed in the course of business, and any Instruments amending or altering the same, and consents to the modification or alteration of any Instrument referred to in said bonds or obligations. In Witness Whereof, said FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY have each executed and attested these presents and affixed their corporate seals on this 17th day of April, 2023. (ul,, n \l Chlores. As iI iatu Socretarli STATE OF NEW JERSEY County of Hunterdon Warrvm Lichhorn.l i- Pr«ident On this 17tb day of April, 2023 before me, a Notary Public of New Jersey, personally came Dawn M. Chloros and Warren Eichhorn, tome known to be Assistant Secretary and Vice President, respectively, of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY, the companies which executed the foregoing Power of Attorney, and the said Dawn M. Chloros and Warren Eichhorn, being by me duly sworn, severally and each for herself and himself did depose and say that they are Assistant Secretary and Vice President, respectively, of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY and know the corporate seals thereof, that the seals affixed to the foregoing Power of Attorney are such corporate seals and were thereto affixed by authority of said Companies; and that their signatures as such officers were duly affixed and subscribed by like authority. Notarial Seal 4�,t c o oeu� ��'r' JER� Albert Cart - NOTARY PUBLIC OF NEW JERSEY No 50202369 Commission Expires August 22,2027 Notary Public CERTIFICATION Resolutions adopted by the Boards of Directors of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, and PACIFIC INDEMNITY COMPANY on August 30, 2016; WESTCHESTER FIRE INSURANCE COMPANY on December 11, 2006; and ACE AMERICAN INSURANCE COMPANY on March 20, 2009: "RESOLVED, that the following authorizations relate to the execution, for and on behalf of the Company, of bonds, undertakings, recognizances, contracts and other written commitments of the Coinpany entered into in the ordinary course of business (each a "Written Commitment'"): (1) Each of the Chairman, the President and the Vice Presidents of the Company is hereby authorized to execute any Written Commitment for and on behalf of the Company, under the seal of the Company or otherwise. (2) Each duly appointed attorney -in -fact of the Company is hereby authorized to execute any Written Commitment for and on behalf of the Company, under the seal of the Company or otherwise, to the extent that such action is authorized by the grant of powers provided for in such person's written appointment as such attorney -in -fact (3) Each of the Chairman, the President and the Vice Presidents of the Company is hereby authorized, for and on behalf of the Company, to appoint in writing any person the attorney-m- fact of the Company with full power and authority to execute, for and on behalf of the Company, under the seal of the Company or otherwise, such Written Commitments of the Company as may be specified in such written appointment, which specification may be by general type or class of Written Commitments or by specification of one or more particular Written Commitments. (4) Each of the Chairman, the President and the Vice Presidents of the Company is hereby authorized, for and on behalf of the Company, to delegate in writing to any other officer of the Company the authority to execute, for and on behalf of the Company, under the Company's seal or otherwise, such Written Commitments of the Company as are specified in such written delegation, which specification may be by general type or class of Written Commitments or by specification of one or more particular Written Commitments. (5) The signature of any officer or other person executing any Written Commitment or appointment or delegation pursuant to this Resolution, and the seal of the Company, may be affixed by facsimile on such Written Commitment orwritten appointment or delegation. FURTHER RESOLVED, that the foregoing Resolution shall not be deemed to be an exclusive statement of the powers and authority of officers, employees and other persons to act for and on behalrof the Company, and such Resolution shall not limit or otherwise affect the exercise of arty such power or authority otherwise validly granted or vested." 1, Dawn M. Chloros, Assistant Secretary of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY (the "Companies") do hereby certify that (i) the foregoing Resolutions adopted by the Board of Directors of the Companies are true, correct and in full force and effect, (ii) the foregoing Power of Attorney is true, correct and in full force and effect. Given under my hand and seals of said Companies at Whitehouse Station, NJ, this May 12, 2023. 1 Davin 31. Chlon s. Asuuant IN THE EVENT YOU WISH TO VERIFY TILE AUTHENTICITY OF THIS BOND OR NOTIFY US OF ANY OTHER MATTER, PLEASE CONTACT US AT: Telephone 908 903. 3493 Fax 908 903-3656 e-mail: sure @chubb.com Combined: FED-VIG-PI-WFIC-AAIC (rev. 11-19) N° 5-389 STATE OF CALIFORNIA DEPARTMENT OF INSURANCE SAN FUNCISCO AMENDED Certificate of .Authority Tim Is -ro Ciurrrnz, That, pursuant to the Insurance Code of the State of California. Federal insurance .Company of Indianapolis, Indiana , orgmazed under the lawns of Indiana , subject to its Arflcies of Incorporation or other fundamental organizational documents, is hereby authorized to Yt-amatt within this State, subjectto all proofsions of this Certokwo, the following classes of insurance., FIRE, MARINE, SURETY, DISABILITY, PLATE GLASS, LIABILITY, WORKERS' COMPENSATION, COMMON CARRIER LIABILITY, BOILgR AND MACHINERY, BURGLARY, CREDIT, SPRINKLER. TEAM AND VEHICLE, AUTOMOBILE, AIRCRAFT and MISCELLINNEOUS a such classes are now or may hereafter he defaced in the Insurance Louts of the State of California. Tum Om=csTz is expressly conditioned upon the holder hereof noto and hereafter being in full compliance wish all, and not in violation of any, of the applicable lave and latom requirements made under authority of the lams of the State of California as long as such tarns or requirements are in e9ect and applicable, and as rush lauu and requirements now are, or may hereafter be changed or arirended. Its W'TNsss W10,mvr, e$ectioe as of the 1 S th day ,f_Uctober I9 90, I have herewiio set my hand and caused my o5cial seal to be affixed this__15th day of October Ig 90 By NOTICE, Quali =tkm with the So=ta y of Stis must be acwaxplished as required by the Ca$fo=ia Corporations Coda promptly sass issuance of this Certificate of Authority. Failure to,do to vvM be a violation of Ins. Coda Sea 703 sad will be Sounds for revo)dng this Certificate of Autbor+ty purs=t to tba covcu=ts made in tba app$catiea th=efor and the oondit'tivus contained bezeiu. Fear can to Mm1