HomeMy WebLinkAboutC-3515 - Construction Support Servicesr�
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
TO: Mayor and Members of the City Council
FROM: Public Works Department
Lois Thompson, Administrative Manager
949 - 644 -3311
Ithompson @city. newport- beach. ca. us
Agenda Item No. 10
January 28, 2003
BY THE CITY COUNCIL
CRY OF NEWPORT BEACH
SUBJECT: APPROVE AMENDMENT NO. 2 TO PROFESSIONAL SERVICES
AGREEMENT WITH PROSOURCE, INC., FOR CONSTRUCTION
SUPPORT SERVICES
RECOMMENDATION:
Approve Amendment No. 2 to the Professional Services Agreement with Pro Source,
Inc., for extension of contract construction inspection services in the amount of
$36,000.
DISCUSSION:
A Public Works contract construction inspector was retained through an informal contract
with ProSource, Inc., on November 13, 2001.
Due to the recent retirement of two construction section staff members (one a Senior
Public Works Inspector) and the current and upcoming inspection workload for Capital
Improvement Program (CIP) construction projects, we continue to require the services of
a contract inspector. Recruitment for a replacement Public Works Inspector is underway
at this time. However, it is expected there will be at least a two -month period before a
replacement inspector is recruited and perhaps another two- months before the new
inspector can take on a full load of inspection projects.
A contract time extension for the current contract inspector will help meet the interim
needs of the Public Works Department. Amendment No. 2 will extend the term of the
contract to September 15, 2003, and is necessary to maintain an adequate staffing level
to handle the current and future inspection workload.
SUBJECT: APPROVE At MENT NO. 2 TO PROFESSIONAL SERVICES A,EMENT WITH PROSOURCE, INC.,
FOR CONSTR ION SUPPORT SERVICES
January 28, 2003
Page 2
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, this contract
inspector will be assigned to various construction projects with the following general
scope of work:
1. Inspect construction work for assigned projects on a daily basis. Ensure work
done is per contract specifications and plan drawings.
2. Coordinate the contractor's work with residents, businesses, other City
departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with contractor's superintendent to submit to
construction engineer for monthly progress payments.
4. Inform construction engineer of potential project changes. Obtain contractor cost
estimates for suggested changes and for approval by construction engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Environmental Review: This activity is not a project as defined in the California
Environmental Quality Act (CEQA) Implementing Guidelines.
Funding Availability: Funds are available in the Public Works, Engineering Division,
Operations and Maintenance Account No. 5100 -8080 in the amount of $36,000 to cover
the costs of the additional contract inspection services.
Public Notice: Not Applicable
Prepared by:
IJ
Lois Thompson
Administrative Manager
Submitted by:
Stephe Badum
Publi Works Director
Attachments: Amendment No. 2
November 13, 2001 — Approval of Professional Services Agreement
February 26, 2002 — Approval of Amendment No. 1
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PROFESSIONAL SERVICES AGREEMENT
FOR CONSTRUCTION SUPPORT SERVICES
AMENDMENT NO. 2
THIS AMENDMENT
NO. 2 TO
PROFESSIONAL
SERVICES
AGREEMENT, entered into this
day of
, 2003,
by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as "CITY ") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant'), is made with
reference to the following:
RECITALS:
A. On November 26, 2001, CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as "AGREEMENT', for
Construction Inspection services.
B. On February 26, 2002, CITY and CONSULTANT amended the
Professional Services Agreement by executing Amendment No. 1.
B. CITY desires to enter into this AMENDMENT NO. 2 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to September 15, 2003.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as "AMENDMENT NO. 2 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTANT shall be compensated for services performed
pursuant to this AMENDMENT NO. 2.
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2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 2 shall not exceed thirty six thousdand
and 001100 Dollars ($36,000).
3. The term of the AGREEMENT shall be extended to January 15,
2003.
4. Except as expressly modified herein, all other provisions, terms,
and covenants set forth in AGREEMENT shall remain unchanged and shall be in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO. 2 on the date first above written.
CITY OF NEWPORT BEACH,
A municipal corporation
M
APPROVED AS TO FORM: Mayor
City of Newport Beach
By:
City Attorney
ATTEST:
LaVonne Harkless
City Clerk
Pro Source, Inc.
f: \users\pbw\shared\agreements \fy 02 -03 \prosource amend no. 2.doc
i • EXHIBIT "A"
Pro," S-mT- e`"
Pro Source, Inc.
Suite 200
PRO SOURCE, INC 1221 E. Dyer Road
Santa Ana, CA 92705
BASIC AGRFEMENT Voice 714.755.4100
Fax: 714,755.4104
City of Newport Beach
In accordance with your instructions, we are assigning our employee, Nick Godinez to your Project in the
capacity of Public Works Inspector beginning in January 2003.
Confirming our verbal quotation, the Billing Rate for these services will be as follows.
BI Rate: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
The following terms will govern this assignment
1. Billings will be rendered weekly based upon time slips, which Pro Source, Inc. will
provide to our employee that must be signed by your representative each week.
Terms are payable Net 30 days.
2. This agreement is made with the understanding that City of Newport Beach will be
allowed to employ Nick Godinez on a permanent basis without the permission of
Pro Source, Inc. at any time during or at the end of the contract for at least a 6-
month period.
3. You acknowledge and confirm that our employee is working at your facility solely
under your direction and supervision.
We request that you sign and return a copy of this confirmation to Pro Source, Inc. thank you for
the opportunity to service your company,
Pro Source Representative:
1221 E. JUyer Road, Suite 200
Santa Ana, CA 92705
Company- City of Newport Beach
Authorized Signature and Title
City of Newport Beach
3800 Newport Boulevard
Newport Beach, CA 92663
TO: Mayor and Members of the City Council
FROM: Public Works Department
November 13, 2001
CITY COUNCIL AGENDA
ITEM NO. 8
SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT FOR
PUBLIC WORKS INSPECTION SERVICES
RECOMMENDATIONS:
Approve a Professional Services Agreement for Inspection Services with Quantum
Consulting for $75,000. Authorize the Mayor and the City Clerk to execute the
Agreement.
2. Authorize a Budget Amendment appropriating $150,000 to 5100 -8080 (Services —
Professional & Technical) from General Fund unappropriated surplus fund balance.
DISCUSSION:
Currently the inspection demands on the City's three full -time inspectors far exceeds their
capacity. There are approximately 16 projects in various stages of construction at this
time and an additional 5 projects scheduled to be awarded before January 1, 2002. From
January 1, 2002 through July 1, 2002 Staff anticipates the award of an additional 20
construction projects. Our inspection staff needs to be increased by two contract
inspectors as soon as possible to be able to provide necessary inspections for current
and future construction projects as well as Encroachment Permit inspections.
The first inspector is needed to provide inspection of the Newport and Balboa Piers
Rehabilitation Project. The Quantum Consulting proposal in the amount of $75,000 offers
the services of an .inspector with over 35 years of Public Works experience and ocean -
related project experience with the City of Los Angeles Ports and Harbors Department.
The second inspector is needed to inspect various CIP construction projects scheduled to
begin shortly. Staff is communicating with several other firms to find this inspector. It is
anticipated an additional $75,000 will be needed for these services and another
Agreement will be brought to Council for consideration at a future meeting.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, the contract
inspectors will be assigned to the Pier Rehabilitation and various other construction
projects with the following general scope of work:
SUBJECT: Approval of Professional Services Agreement for Public works Inspection Services ,.
Date: Novemher 13, 2001
Page 2
1. Inspect construction work for assigned projects on a daily basis. Insure work done
is per contract specifications and plan drawings.
2. Coordinate the Contractor's work with residents, businesses, other City
Departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with Contractor's Superintendent to submit to
Construction Engineer for monthly progress payments.
4. Inform Construction Engineer of potential project changes. Obtain Contractor cost
estimates for suggested changes and for approval by Construction Engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Staff is requesting Council to authorize a total of $150,000 to the Public
Works /Engineering Operations budget to facilitate the payment of these services
throughout the fiscal year. Although this expenditure is initially being authorized in the
General Fund as an operating expenditure, at year -end, these expenditures will be
allocated back to the specific CIP's the inspection services were utilized for. The
General Fund will be reimbursed if the inspection services were utilized for CIP's
funded by sources other than the General Fund.
Respectfully
- --PUBL C`NORKS DEPARTMENT
StepKeen G. Badum, Director
By: "o,2?.[/
R. Gunther, P.E.
Construction Engineer
Attachment: Agreement
PROFESSIONAL SERVICES AGREEMENT
FOR
CONSTRUCTION SUPPORT SERVICES
THIS AGREEMENT, entered into this S74 day of 17)Fh1 Q r' , 2001, by and
between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as
"City "), and Pro Source, Inc., whose address is 1221 E. Dyer Road, Suite 200, Santa Ana,
CA 92705, (hereinafter referred to as "Consultant'), 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 Consultant to perform construction inspection services
upon the terms and conditions contained in this Agreement.
C. The principal member of Consultant for purpose of this Agreement is Scott
Ryan.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
contract with Consultant under the terms and conditions provided 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 them day of��1/�`lI
2001, and shall terminate on the 28 th day of February 2002, unless terminated earlier as set
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forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall provide Construction Inspection services. (Consultant Fact Sheet
attached as Exhibit "A ".) Upon verbal request from Services Administrator, Consultant shall
provide letter proposals for services requested by the City. The letter proposal shall include
the estimated cost and time to complete the services, including the estimated number of
hours and position for each person assigned to perform the services contained in the letter
proposal. No Services shall be provided until the City has provided written acceptance of the
letter proposal. Consultant shall diligently perform the duties in the approved letter proposals,
in accordance with the terms and conditions of this Agreement.
3. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of this
Section and the scheduled billing rates set forth in Appendix "B" to Exhibit "A" attached hereto
and incorporated herein by reference. No rate changes shall be made during the term of this
Agreement without prior written approval of City. Consultant's compensation for all services
performed in accordance with this Agreement shall not exceed the total contract price of
Twenty Nine Thousand Three Hundred Seventy Six Dollars ($29,376).
3.1 Consultant shall maintain accounting records of its billings which includes the
name of the employee, type of work performed, times and dates of all work which is billed on
an hourly basis, what task the work is for and all approved incidental expenses including
reproductions, computer printing, postage and mileage.
3.2 Consultant shall submit monthly progress invoices to City payable by City within
thirty (30) days of receipt of invoice.
3.3 Consultant shall not receive any compensation for extra work without prior
written authorization of City. Any authorized compensation shall be paid in accordance with
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the schedule of the billing rates as set forth in Exhibit "B ".
3.4 City shall reimburse Consultant only for those costs or expenses, which have
been specifically approved in advance by City. Such cost shall be limited and shall include
nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants.for performance of any of the services which
Consultant agrees to render pursuant to this Agreement which have been
approved in advance by City and in accordance with the terms and conditions of
this Agreement.
B. Approved computer data processing and reproduction charges.
C. Actual costs and /or other costs and /or payments specifically authorized in
advance in writing and incurred by Consultant in the performance of this
Agreement.
4. STANDARD OF CARE
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the services required by this Agreement and that it will perform
all services in a manner commensurate with the community professional standards. All
services shall be performed by qualified and experienced personnel who are not employed by
City nor have any contractual relationship with City. Consultant represents to City that it has
or shall obtain all licenses, permits, qualifications and approvals required of its profession.
Consultant further represents that it shall keep in effect all such licenses, permits and other
approvals during the term of this Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, failure of City to furnish timely information or to promptly
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approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or
governmental agencies, or any other delays beyond Consultant's control.
4.3 The term Construction Inspection does not imply that Consultant is engaged in
any aspect of the physical work of construction contracting. Consultant shall not have control
over or charge of, and shall not be responsible for Project's design, Project's contractor
(hereinafter referred to as "Contractor"), construction means, methods, techniques,
sequences or procedures, or for any health or safety precautions and programs in connection
the work. These duties are and shall remain the sole responsibility of the Contractor.
Consultant shall not be responsible for the Contractor's schedules or failure to carry out the
work in accordance with the contract documents. Consultant shall not have control over or
charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their
Agents or employees, or of any other persons performing portions of the work.
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
Consultant, except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute
Consultant or any of Consultant's employees or agents to be the agents or employees of City.
Consultant shall have the responsibility for and control. over the details and means of
performing the work provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement which may appear to give City the right to direct
Consultant as to the details of the performance of the services or to exercise a measure of
control over Consultant shall mean that Consultant shall follow the desires of City only in the
results of the services.
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6. COOPERATION
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Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies, which may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with Consultant on Project.
7. PROJECT MANAGER
Consultant shall assign Agreement to a Services Manager, who shall coordinate all
aspects of this Agreement. This Services Manager shall be available to City at all reasonable
times during term of Project. Consultant has designated Scott Ryan to be its Services
Manager. Consultant shall not remove or reassign any personnel designated in this Section
or assign any new or replacement person to Project without the prior written consent of City.
City's approval shall not be unreasonably withheld with respect to removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from Project any of its personnel
assigned to the performance of services upon written request of City. Consultant warrants it
will continuously furnish the necessary personnel to complete Project on a timely basis as
contemplated by this Agreement.
8. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement and
Consultant shall perform the services in a timely manner. The failure by Consultant to strictly
perform in a timely manner may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due
to causes beyond Consultant's reasonable control. However, in the case of any such delay in
the services to be provided for Project, each party hereby agrees to provide notice to the
other party so that all delays can be addressed.
8.1 Consultant shall submit all requests for extensions of time for performance in
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writing to the Project Administrator not later than ten (10) calendar days after the start of the
condition, which purportedly causes a delay, but not later than the date upon which
performance is due. The Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays, which are beyond Consultant's control.
8.2 For all time periods not specifically set forth herein, Consultant shall respond in
the most expedient and appropriate manner under the circumstances by telephone, fax, hand
delivery or mail.
9. CITY POLICY
Consultant shall discuss and review all matters relating to policy and project direction
with the Project Administrator in advance of all critical decision points in order to ensure that
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City Council.
11. PROGRESS
Consultant is responsible to keep the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of the
work, activities performed and planned, and any meetings that have been scheduled or are
desired.
12. HOLD HARMLESS
Consultant shall indemnify, defend, save and hold harmless City, its City Council,
boards and commissions, officers and employees from and against any and all loss,
damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property
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damages, or any other claims arising from any and all negligent acts or omissions of
Consultant, its employees, agents or subcontractors in the performance of services or work
conducted or performed pursuant to this Agreement, excepting only the active negligence or
willful misconduct of City, its officers or employees, and shall include attorneys' fees and all
other costs incurred in defending any such claim. 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.
13. INSURANCE
Without limiting consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain and provide and maintain at its own expense during the term of
this Agreement policy or policies of liability insurance of the type and amounts described
below and satisfactory to City. Certification of all required policies shall be signed by a person
authorized by that insurer to bind coverage on its behalf and must be filed with City prior to
exercising any right or performing any work pursuant to this Agreement. Except workers
compensation and errors and omissions, all insurance policies shall add City, its elected
officials, officers, agents, representatives and employees as additional insured for all liability
arising from Consultant's services as described herein.
Insurance policies with original endorsements indemnifying Project for the following
coverages shall be issued by companies admitted to do business in the State of California
and assigned Best's A- VII or better rating:
A. Worker's compensation insurance, which includes the "Waiver of Subrogration"
clause, covering all employees and principals of Consultant, per the laws of the
State of California.
B. Commercial general liability insurance, including the primary and non-
contributory wording, covering third party liability risks, including without
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limitation, contractual liability, in a minimum amount of $1 million combined
single limit per occurrence for bodily injury, personal injury and property
damage. If commercial general liability insurance or other form with a general
aggregate is used, either the general aggregate shall apply separately to this
Project, or the general aggregate limit shall be twice the occurrence limit.
C. Commercial auto liability and property insurance, including the primary and non-
contributory wording, covering any owned and rented vehicles of Consultant in a
minimum amount of $1 million combined single limit per accident for bodily
injury and property damage.
Said policy or policies shall be endorsed to state that coverage shall not be canceled
by either party, except after thirty (30) days prior notice has been given in writing to City.
Consultant shall give City prompt and timely notice of claim made or suit instituted arising out
of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own .judgment may be
necessary for its proper protection and prosecution of the work.
Consultant agrees that in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general and automotive liability insurance, which
Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on
behalf of any insurer providing workers compensation, comprehensive general, and
automotive liability insurance to either Consultant or City with respect to the services of
Consultant herein, a waiver of any right of subrogation, which any such insurer of said
Consultant may acquire against City by virtue of the payment of any loss under such
insurance.
14. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any
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of the services to be performed under this Agreement, directly or indirectly, by operation of
law or otherwise without prior written consent of City. Any attempt to do so without consent of
City shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or
syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. 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.
15. OWNERSHIP OF DOCUMENTS
Each and every report, draft, work product, map, record and other document
reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection
with this Agreement shall be the exclusive property of City.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or others on
any other project. Any use of completed documents for other projects and any use of
incomplete documents without specific written authorization from Consultant will be at City's
sole risk and without liability to Consultant. Further, any and all liability arising out of changes
made to Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived as against Consultant and City assumes full responsibility for such
changes unless City has given Consultant prior notice and has received from Consultant
written consent for such changes.
Consultant shall, at such time and in such forms as City may require, furnish reports
concerning the status of services required under this Agreement.
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16. CONFIDENTIALITY
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The information, which results from the services in this Agreement, is to be kept
confidential unless City authorizes the release of information.
17. ADMINISTRATION
The Public Works Department will administer this Agreement. Robert Gunther shall be
considered the Services Administrator and shall have the authority to act for City under this
Agreement. The Services Administrator or his /her authorized representative shall represent
City in all matters pertaining to the services to be rendered pursuant to this Agreement.
18. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and accurate records
with respect to the costs incurred under this Agreement. All such records shall be clearly
identifiable. Consultant shall allow a representative of City during normal business hours to
examine, audit and make transcripts or copies of such records. Consultant shall allow
inspection of all work, data, documents, proceedings and activities related to the Agreement
for a period of three (3) years from the date of final payment under this Agreement.
19. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute with
respect to such payment. Such withholding shall not be deemed to constitute a failure to pay
according to the terms of this Agreement. Consultant shall not discontinue work for a period
of thirty (30) days from the date of withholding as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of seven percent (7 %) per annum from the date of withholding of any amounts found
to have been improperly withheld.
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20. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than would have resulted if
there were not errors or omissions in the work accomplished by Consultant, the additional
design, construction and /or a restoration expense shall be borne by Consultant. Nothing in
this paragraph is intended to limit City's rights under any other sections of this Agreement.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in connection with Agreement.
22. CONFLICTS OF INTEREST
A. Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose financial interest that may foreseeably be materially affected by the
work performed under this Agreement, and (2) prohibits such persons from
making, or participating in making, decisions that will foreseeably financially
affect such interest.
B. If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Consultant shall indemnify and hold harmless City for
any and all claims for damages resulting from Consultant's violation of this
Section.
23. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior
written approval of City.
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24. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
third business day after the deposit thereof in the United States mail, postage prepaid, first
class mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Consultant to City shall be addressed
to City at:
Robert Gunther, P.E.
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA, 92658 -8915
(949) 644 -3311
Fax (949) 644 -3318
All notices, demands, requests or approvals from City to Consultant shall be addressed
to Consultant at:
Attention: Scott Ryan
Pro Source, Inc.
1221 E. Dyer Road
Suite 200
Santa Ana, CA 92705
714 - 755 -4100
Fax: 714 - 755 -4104
25. TERMINATION
In the event either part hereto fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, 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) days, or
if more than two (2) days are reasonably required to cure the default and the defaulting party
fails to give adequate assurance of due performance within two (2) days after receipt by
defaulting party from the other parry of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, the nondefaulting parry may terminate
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the Agreement forthwith by giving to the defaulting party written notice thereof.
25.1 City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein.
Upon termination of this Agreement, City shall pay to Consultant that portion of
compensation specified in this Agreement that is earned and unpaid prior to the effective date
of termination.
26. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
27. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant or condition contained herein whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions hereon. Any modification of this Agreement will be effective
only by written execution signed by both City and Consultant.
29. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of City. Since
Consultant has no control over the cost of labor and material, or over competitive bidding or
market conditions, Consultant does not guarantee the accuracy of such opinions as
compared to contractor bids or actual cost to City.
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30. PATENT INDEMNITY
Consultant
shall indemnify
City,
its agents,
officers,
representatives
and employees
against liability,
including costs,
for
infringement
of any
United States'
letters patent,
trademark, or copyright infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By:
City Attorney
f: \users\pbw\shared\agreements \fy 01- 02\prosource.doc
14
CITY OF NEWPORT BEACH
A Municipal Corporation
.n G. Badum
Works Director
Pro Source, Inc.
By i
PRO SOURCE, INC
BASIC AGREEMENT
City of Newport Beach
Pro Source, Inc.
Suite 200
1221 E. Dyer Road
Santa Ana, CA 92705
Voice 714 - 755 -4100
Fax 714- 755 -4104
In accordance with your instructions, we are assigning our employee, Nicholas Godinez to your
Project in the capacity of Public Works Inspector beginning on, Monday, November 5, 2001.
Confirming our verbal quotation, the Billing Rate for these services will be as follows.
Straight time: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
The following terms will govern this assignment:
Billings will be rendered weekly based upon time slips, which Pro Source, Inc.
will provide to our employee that must be signed by your representative each
week. Terms are payable Net 30 days.
2. This agreement is made with the understanding that City of Newport Beach
will not be allowed to employ Nicholas Godinez a permanent basis without
the permission of Pro Source, Inc. at any time during or at the end of the
contract for at least a 6 -month period.
3. You acknowledge and confirm that our employee is working at your facility
solely under your direction and supervision.
We request that you sign and return a copy of this confirmation to Pro Source, Inc. Thank you
for the opportunity to service your company.
Pro Source Representative:
Resource Specialist
Pro Source, Inc
1221 E Dyer Road, Suite 200
Santa Ana, CA 92705
Company. City of Newport Beach
Authorized Signature and Title
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
0
E'OV L.
BY tl
DA O 2
TO: Mayor and Members of the City Council
FROM: Public Works Department
0
February 26, 2002
CITY COUNCIL AGENDA
ITEM NO. 4
SUBJECT: APPROVAL OF AMENDMENT NO. 1 TO THE PROFESSIONAL
SERVICES AGREEMENT FOR CONSTRUCTION SUPPORT SERVICES
WITH PRO SOURCE, INC.
RECOMMENDATION:
Approve Amendment No. 1 to the Professional Services Agreement for construction
services with Pro Source, Inc.
DISCUSSION:
On November 13, 2001, the Council authorized a budget amendment appropriating
$150,000 for contract inspection services. Public Works inspection staff needed to be
increased by two contract inspectors as soon as possible to be able to provide necessary
inspections for current and future construction projects, as well as Encroachment Permit
inspections. The first inspector was retained via that Council approval and is being used
on the Ocean Pier Rehabilitation project.
The second inspector was retained using an informal contract that did not require Council
approval. This inspector has many years of municipal inspection experience and has
adjusted well to inspecting Newport Beach projects. The current and upcoming
inspection workload for CIP construction projects will require continued additional
inspection staff. The original contract amount for inspection services is approaching the
threshold amount that requires Council approval and we are therefore bringing the
amendment to the agreement to Council for approval.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, this contract
inspector will be assigned various construction projects with the following general scope
of work:
1. Inspect construction work for assigned projects on a daily basis. Ensure work
done is per contract specifications and plan drawings.
SUBJECT: Aporoval of Amendment No. t to the Professional Services Agreement for Construction Support Services with Pro
Source, Inc.
February 26, 20C2
Page 2
2. Coordinate the Contractor's work with residents, businesses, other City
Departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with Contractor's Superintendent to submit to
Construction Engineer for monthly progress payments.
4. Inform Construction Engineer of potential project changes. Obtain Contractor cost
estimates for suggested changes and for approval by Construction Engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Council approved the expenditure for this contract inspection on November 13, 2001. Per
that approval, the expenditure was initially being authorized in the General Fund as an
operating expenditure. At year -end these expenditures will be allocated back to the
specific CIP's utilizing the inspection services, The General Fund will be reimbursed if the
inspection services were utilized for CIP's funded by sources other than the General
Fu nd.
Respectfully su brrtitted,
Y—
PUBLE ORKS DEPARTMENT
Steve Badum, Director
By: leYf2¢.�
R. Gunther, P.E.
Construction Engineer
Attachments: Amendment No. 1
Agreement
Council Memo, November 13, 2001
-SEP. 25, 20021 3:20PM e"PROSOURCE SANTA ANA Pro source -core 6An -ANO 156 Q 6/7 uvo
AMENDMENT NO.1
TO
PROFESSIONAL SERVICES AGREEMENT WITH PRO SOURCE
THIS AMENDMENT NO, 1 TO PROFESSIONAL SERVICES
AGREEMENT, entered into this j day of 2002, by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as °CITY") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant"), is made with
reference to the following;
RECITALS;
A. On November 26, 2001, CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as 'AGREEMENT', for
Construction Inspection services.
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to September 30, 2002.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as `AMENDMENT NO, Iwo as provided here below.
NOW, THEREFORE, the parties hereto agree as follows.
1. CONSULTANT shall be compensated for se Roes performed
pursuant to this AMENDMENT NO. 1 according to 'Exhibit K dated November 26,
2001, attached hereto.
'T'10altfd:01
�!T `dZ�"eOPb'�� Dl -�0tib S'S!. -qXL � �d,11.F.iS LF�2 cE 21�' ii'tkw.l
SEP. 25.20021 3:21PM $78PROSOURCE SANTA ANA Pro source -rorp X44 SANTA NO. 156 P. 7/7 gDOs
2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 1 shall not exceed forty-five thousand
and 001100 Dollars ($45,000,00).
2002.
a. The term of the AGREEMENT shall be extended to September 30,
4. Except as expressly modified heroin, all other provisions, terms,
and covenants set forth In AGREEMENT shall remain unchanged and shall be in foil
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO.1 on the date first above written,
APPROV D AS TO FORM:
By.
City Attorney
CITY OF NEWPORT BEACH,
A municipal corporation
BY: LJ.
Mayor
City of Newport each
Pro Source, Inc.
Br'
ATTEST:
cr,��• "� �'iC �'• Ct�AUC�
b} i1oul
LaVonne Harldess
City Clerk
ilusetslpbw�shslsTeq�ee7lWnb ft 0i -6ZWw*4= amend nm i.d=
i k0sMSTZ)MSMre&AQReRrgtffyDI. Zft;SauxAmendNo.IAm
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0
PRO SOURCE, INC
BASIC AGREEMENT
City of Newport Beach
• EXHIBIT A
Pro Source-
Pro Source, Inc.
Suite 200
1221 E. Dyer Road
Santa Ana, CA 92705
Voice 714 - 755 -4100
Far,: 714- 755 -4104
In accordance wilt your instructions, we are assigning our employee, Nicholas Godinez to your
Project in the capacity of Public Works Inspector beginning on, Monday, November 5, 2001.
Confinning our verbal quotation, die Billing Rate for these services will be as follows.
Straight time: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
The following terns i +ill govern dis assignment:
1. Billings will be rendered weekly based upon time slips, which Pro Source, Inc.
will provide to our employee that must be signed by your representative each
week. Teens are payable Net 30 days.
2. This agreement is made with die understanding that City of Newport Beach
will not be allowed to employ Nicholas Godinez a permanent basis without
die peniission of Pro Source, Inc. at any time during or at die end of the
contract for at least a &month period.
3. You acknowledge and confirm that our employee is working at your facility
solely under your direction and supervision.
We request that you sign and return a copy of this confirmation to Pro Source, Inc. Thank you
for die opportunity to service your company.
Pro Source Representative:
Resource Specialist
Pro Source, hic
1221 E. Dyer Road, Suite 200
Santa Ana, CA 92705
Conipanr.. City of Newport Beach
Authorized Signature and Title
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
PROFESSIONAL SERVICES AGREEMENT
FOR CONSTRUCTION SUPPORT SERVICES
AMENDMENT NO. 2
THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES
AGREEMENT, entered into this q4�' day of TvniY 2002, by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as "CITY ") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant "), is made with
reference to the following:
RECITALS:
A. On November 26, 2001, CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as "AGREEMENT ", for
Construction Inspection services.
B. On February 26, 2002, CITY and CONSULTANT amended the
Professional Services Agreement by executing Amendment No. 1.
B. CITY desires to enter into this AMENDMENT NO. 2 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to January 15, 2003.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as "AMENDMENT NO. 2 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTANT shall be compensated for services performed
pursuant to this AMENDMENT NO. 2.
F:\ USERS \PBW \Shared \Agreements \ProSource Amend No. 2.doc
0
2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 2 shall not exceed twenty seven
thousdand and 001100 Dollars ($27,000).
2003.
3. The term of the AGREEMENT shall be extended to January 15,
4. Except as expressly modified herein, all other provisions, terms,
and covenants set forth in AGREEMENT shall remain unchanged and shall be in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO. 2 on the date first above written.
APPROVED AS TO FO
By:
City Attorney
ATTEST:
By :Lr
LaVonne Harkless
City Clerk
CITY OF NEWPORT BEACH,
A municipal corporation
BY: �
Mayor
City of NewpClBeach
Pro Source, ,21n
BY:
f:\ users \pbw\shared \agreements \prosource amend no. 2.doc
F:\ USERS \PBW \Shared \Agreements \ProSource Amend No. 2.doc
• • EXHIBIT A
Pro Source-
Pro Source, Inc -
Suite 200
Santa An E. Dyer Road
PRO SOURCE, INC
Santa Ana, CA 92705
BASIC AGREEMENT Voice 714 - 755 -4100
Fax: 714- 755-4104
City of Newport Beach
In accordance with your instructions, we are assigning our employee, Nicholas Godinez to your
Project in the capacity of Public Works Inspector beginning on, Monday, November 5, 2001.
Confimung our verbal quotation, the Billing Rafe for these services will be as follows.
Straight time: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
The following tenns will govern this assignment;
I. Billings will be rendered weekly based upon time slips, which Pro Source, Inc.
will provide to our employee that must be signed by your representative each
week. Terns are payable Net 30 days.
2. This agreement is made with the understanding that City of Newport Beach
will not be allowed to employ Nicholas Godinez a permanent basis without
the pemnission of Pro Source, Inc. at any time during or at die end of the
contract for at least a 6-month period.
3. You acknowledge and confirm that our employee is working at your facility
solely under your direction and supervision.
We request that you sign and return a copy of this con6nnation to Pro Source, Inc. Thank you
for die opportunity to service your company.
Pro Source Representative:
Resource Specialist
Pro Source, Inc
1221 E. Dyer Road, Suite 200
Santa Ana, CA 92705
Company: City of Newport Beach
Authorized Signature and Tide
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
9 0
ACORD „ CERTIFICATE OF LIABILITY INSURANCE
° "x(
09/266/20120 02
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Executive Strategies, Inc.
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
1246 Berkshire Road
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Grosse Pointe Park, MI 48230
(313) 881 -8069
INSURERS AFFORDING COVERAGE
REMIND Pro Source, Inc.
INSURERA'. Kemper Insurance Companies
INSURER B'.
196 Bear Hill Rd.
INSURER C:
Waltham, MA 02154
INSURER D
INSURER E'.
COVERAGES NAB' LUUC
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 0 SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
N5R
LTR T9E CF NSURM'CE
PoICTNUMBER
POUCYEFFECRVE
DATEUMIWXoM
POLCY EXRMIXN LIMITS
DATE MMN
GENERAL UABBIfY
—IT OCCURRENCE 81,000,000
X COMMERCNLGENERALUABILRY
FIRE DAMAGE Ony one fire) $100,000
CWMSMADE J OCCUR
MED Ew(Any one person) $10, 000
A
17RS798640 -01
09/01/02 09/01/03 PERSONAL& ADV INJURY 11Inc l y_de_d
Ir GENERALAGGREWTE $2,000,000
PRODUCTS LCMP /OP AGG : S2 , 000 , 000
GENL AGGREGATEUMITAPPLIES PER
POLICY JEi LOC
NUT MOBILELMsUTY
�ANYADTO
COMBINED SINGLE LIMIT
'(E.
o,1,I
,'1,_00.0,0.0_0
ALLONMEDAUTOS
BODILY INJURY
SCHEDULEOAUTOS
(Per person)
5
A' X HIREDAUTOS : 7RS798640 -01
09/01/02
09/01/03
BODILY INJURY
5
XX NOM_ ONNEDAUTOS
(Per s'ods.')
PROPERTY DAMAGE
I
(Per ecmmD
GARAGE IJA&IJTY
AUTOONLY EAACLICEW
S
F AACC
OTHER
5
ANYAUtO
THA ...
AUTO ONLY AGE
.._.. __ .................._
S
. EXCESS UPBN.RY
EACHOCOURRENCE
'5,000,000
X OCCUR CWMSMADE
AGGREGATE
$5, 666,666
7RS798075 -01
09/01/02 09/01/03
js
A 1 DEWCTBLE
..... ..__
S
$
RUW"DON $
WORIIERSLOMPENBATpI MIO
x WC BTAIU OTK
ITORYUMITB
EMPLOYERS' LIABILITY 7BA162468 -00
04/10/02
04/10/03
E.L. EACH ACCIDENT
Slr 000, 000
A'
E.L OISEASEsEAEMPLOYEE
81,000,000
EI. DISEASE POLICY LMIi
S1, OOO, DOO
OTHER
i
I
DEBCRWTKKd OF° PERAIICNEAOCA1pNSNENCLEBIEXCLU" iSADCED BY ENDORSEMa1T5PECML PROYISAN3
City, its officers, agents, officials, employees and volunteers are added as
Additional Insureds on General Liability and Hired s Non -owned Auto Liability.
General and Auto Liability are amended to include Priamry and Non - Contributory
wording in favor of City. Umbrella follows form. Waiver of Subrogation form
WC000313 is attached to the Workers' Compensation policy.
CERTIFICATE HOLDER ADd°ONa. EJSURED; ENSURER LETIEA: CANCELLATION
SHOULD ANY OF THE ABOVE DESCI PO,JCES BE CANCELLED BEFORE THE ORRATHNI
City of Newport Beach WT: THEREOF. THE WOW RLIAER MAU MANS 10 DAYS wRmEN
Public Works Department NOTCE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
PO Box 1768
Newport Beach, CA 92658 -8915 /J
ACORD 25 -S (7197) / 1 0 ACORD CORPORATION 1988
WORKERS COMPENSATI4ND EMPLOYERS LIABILITY INSURAN &OLICY
WAIVER OF OUR RIGHT TO RECOVER
FROM OTHERS ENDORSEMENT
(The information below is required only when this endorsement is issued subsequent to preparation of the
policy.
Endorsement Effective 04/10/2002 Policy No. 7BA 162468 -00 Endorsement No.
Insured Premium
PRO SOURCE INC Y
Insurance Company LUMBERMENS MUTUAL CASUALTY COMPANY
Countersigned by
SCHEDULE
Person or Organization
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPT.
STATE: CA
MINIMUM PREMIUM: $0
% OF PREMIUM PER CONTRACT: 10.00%
THE PREMIUM CHARGE FOR THIS ENDORSEMENT IS TO BE DETERMINED AND BILLED AT AUDIT.
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce
our right against the person or organization named in the Schedule. This agreement applies only to the extent that you
perform work under a written contract that requires you to obtain this agreement from us.
This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule.
THIS ENDORSEMENT CHANGES THE POLICY TO WHICH IT IS ATTACHED AND IS EFFECTIVE ON THE
DATE ISSUED UNLESS OTHERWISE STATED.
Copyright 1983, National Council on Compensation Insurance
WC 00 03 13 (Ed. 04 84) Printed in U.S.A.
<Kemper.
Ins mm Companies
AMERICAN MOTORISTS INSURANCE COMPANY(AMICO)
KEMPER PREMIER BUSINESSOWNERS SPECIAL POLICY DECLARATIONS
_ DIRECT BILL
POLICY NUMBER:
7RS 798 640 -01
1. NAMED INSURED AND MAILING ADDRESS:
PRO SOURCE, INC.
196 BEAR HILL RD
WALTHAM
MA 02154
2. THE NAMED INSURED IS: CORPORATION
3. POLICY PERIOD: FROM 09101/02 TO 09/01/03
12:01 A.M. Standard Time at your mailing address above.
PRIOR POLICY NUMBER: 7RS 798 640 -00
4. IN RETURN FOR THE PAYMENT OF THE PREMIUM, AND SUBJECT TO ALL THE TERMS OF THIS
POLICY, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY.
5. POLICY FORMS AND ENDORSEMENTS ATTACHED AT INCEPTION:
BP7000 (ED. 07 -99) KEMPER PREMIER BUSINESSOWNERS SPECIAL POLICY
BP7104 (ED. 07 -99) KEMPER PREMIER BUSINESSOWNERS
6. PREMIUM FOR THE POLICY:
TOTAL AMOUNT DUE FOR THE POLICY:
PRODUCER INFORMATION:
EXECUTIVE STRATEGIES
1246 BERKSHIRE RD
GROSSE PTE PK MI 48230
88 -0026 313 -506 -6406
BP 70 02 (Ed. 07 99)
$ 5,248.00
$ 5,248.00
COUNTERSIGNATURE:
Date:
Page 1 Printed in U.S.A.
INSURED
SPECIAL PROPERTY COVERAGE FORM
BP7108
(ED.
07 -99)
BUSINESSOWNERS LIABILITY COVERAGE FORM
BP7110
(ED.
07 -99)
BUSINESSOWNERS COMMON POLICY CONDITIONS
BP7800
(ED.
07 -89)
AMENDATORY ENDORSEMENT A
BP7800
(ED.
07 -89)
AMENDATORY ENDORSEMENT A
PARAGRAPH 5
CONTINUED ON NEXT PAGE
6. PREMIUM FOR THE POLICY:
TOTAL AMOUNT DUE FOR THE POLICY:
PRODUCER INFORMATION:
EXECUTIVE STRATEGIES
1246 BERKSHIRE RD
GROSSE PTE PK MI 48230
88 -0026 313 -506 -6406
BP 70 02 (Ed. 07 99)
$ 5,248.00
$ 5,248.00
COUNTERSIGNATURE:
Date:
Page 1 Printed in U.S.A.
INSURED
MANUSCRIPT FORA
AMENDATORY ENDORSEMENT A
PRIMARY INSURANCE
THE FOLLOWING WORDING IS ADDED TO THE BUSINESSOWNERS
LIABILITY COVERAGE FORM BP 71 08 (ED 07 99), SECTION C, WHO
IS AN INSURED, ITEM 5 ADDITIONAL INSUREDS BY CONTRACT,
AGREEMENT OR PERMIT:
THIS INSURANCE IS PRIMARY AND IS NOT ADDITIONAL TO OR
CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE
BENEFIT OF ADDITIONAL INSUREDS.
THIS ENDORSEMENT MUST BE ATTACHED TO A CHANGE ENDORSEMENT WHEN ISSUED AFTER THE
POLICY IS WRITTEN.
BP 78 00 (Ed. 07 89) Printed in U.S.A.
BUSINESSOWNERSOABILITY COVERAGE FORM
Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what
is and is not covered.
Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words
"we," "us" and "our" refer to the Company providing this insurance.
The word "insured" means any person or organization qualifying as such under Section C. — WHO IS AN INSURED.
Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. — LIABILITY AND
MEDICAL EXPENSES DEFINITIONS.
A. COVERAGES 1) To "bodily injury' and "property
damage' only if:
Business Liability
a) The "bodily injury' or "property
a. We will pay those sums that the insured
damage' is caused by an
becomes legally obligated to pay as
"occurrence" that takes place in
damages because of "bodily injury,"
the "coverage territory'; and
"property damage," "personal injury' or
"advertising injury' to which this insurance
b) The "bodily injury' or "property
applies. We will have the right and duty to
damage" occurs during the
defend any "suit" seeking those damages.
policy period.
However, we will have no duty to defend
"suit"
2) To:
the insured against any seeking
damages for "bodily injury," "property
a) "Personal injury" caused by an
damage," "personal injury" or "advertising
offense arising out of your
injury' to which this insurance does not
business;
apply. We may at our discretion
investigate any "occurrence" or offense
b) "Advertising injury' caused by
and settle any claim or "suit" that may
an offense committed in the
result. But:
course of "your advertising
activities ";
1) The amount we will pay for damages
is limited as described in Section D.
but only if the offense was committed
— LIABILITY AND MEDICAL
in the "coverage territory' during the
EXPENSES LIMITS OF
policy period.
INSURANCE; and
2) Our right and duty to defend end
when we have used up the applicable
Limit of Insurance in the payment of
judgments or settlements of medical
expenses.
No other obligation or liability to pay sums
or perform acts or services is covered
unless explicitly provided for under A. 1.
e., Coverage Extension — Supplementary
Payments.
b. This insurance applies:
c. Damages because of "bodily injury'
include damages claimed by any person
or organization for care, loss of services
or death resulting at any time from the
"bodily injury."
d. "Bodily injury," "property damage,"
"personal injury' or "advertising injury'
arising out of the rendering or failure to
render professional health care services
as a pharmacist shall be deemed to be
caused by an "occurrence."
BP 7108 (Ed. 07 99) Pagel of 20 Printed in U.S.A.
e. Coverage Extension ",plementary
Payments
In addition to the Limit of Insurance, we
will pay, with respect to any "claim" we
investigate or settle or any "suit" against
an insured we defend:
1) All expenses we incur.
2) Up to $2,500 for cost of bail bonds
required because of accidents or
traffic law violations arising out of the
use of any vehicle to which Business
Liability Coverage 'for "bodily injury'
applies. We do not have to furnish
these bonds.
3) The cost of bonds to release
attachments, but only for bond
amounts within our Limit of
Insurance. We do not have to furnish
these bonds.
4) All reasonable expenses incurred by
the insured at our request to assist
us in the investigation or defense of
the claim or "suit," including actual
loss of earnings up to $250 a day
because of time off from work.
5) All costs taxed against the insured in
the "suit."
6) Prejudgment interest awarded
against the insured on that part of the
judgment we pay. If we make an offer
to pay the Limit of Insurance, we will
not pay any prejudgment interest
based on that period of time after the
offer.
7) All interest on the full amount of any
judgment that accrues after entry of
the judgment and before we have
paid, offered to pay, or deposited in
court the part of the judgment that is
within our Limit of Insurance.
8) All legal expenses for mental
anguish, mental injury and emotional
distress arising out of Employment -
Related Practices as defined in
Ezc.0 B.1.r. The most we will pay
under this Coverage Extension —
Supplementary Payment for any
single claim or "suit" is $5,000.
2. Medical Expenses
a. We will pay medical expenses as
described below for "bodily injury' caused
by an accident:
1) On premises you own or rent;
2) On ways next to premises you own or
rent; or
3) Because of your operations
provided that:
a) The accident takes place in the
,.coverage territory' and during
the policy period;
b) The expenses are incurred and
reported to us within one year of
the date of the accident; and
c) The injured person submits to
examination, at our expense, by
physicians of our choice as
often as we reasonably require.
b. We will make these payments regardless
of fault. These payments will not exceed
the Limit of Insurance. We will pay
reasonable expenses for:
1) First aid administered at the time of
an accident;
2) Necessary medical, surgical, x -ray
and dental services, including
prosthetic devices; and
3) Necessary ambulance, hospital,
professional nursing and funeral
services.
:3
BP 7108 (Ed. 07 99) Page 2 of 20 Printed in U.S.A.
B. EXCLUSIONS •
C. *or Liability
1. Applicable to Business Liability Coverage
"Bodily injury" or "property damage" for
which any insured may be held liable by
This insurance does not apply to:
reason of:
a. Expected or Intended Injury
1) Causing or contributing to the
"Bodily injury" or "property damage"
intoxication of any person;
expected or intended from the stand -point
of the insured. This exclusion does not
2) The furnishing of alcoholic beverages
apply to "bodily injury' or "property
to a person under the legal drinking
damage" resulting from the use of
age or under the influence of alcohol;
reasonable force to protect persons or
or
property.
3) Any statute, ordinance or regulation
b. Contractual Liability
relating to the sale, gift, distribution or
use of alcoholic beverages.
"Bodily injury" or "property damage" for
which the insured is obligated to pay
This exclusion applies only if you are in
damages by reason of the assumption of
the business of manufacturing,
liability in a contract or agreement. This
distributing, selling, serving or furnishing
exclusion does not apply to liability for
alcoholic beverages.
damages:
d. Workers Compensation and Similar
1) That the insured would have in the
Laws
absence of the contract or
agreement; or
Any obligation of the insured under a
2) Assumed in a contract or agreement
workers compensation, disability benefits
that is an "insured contract," provided
or unemployment compensation law or
the "bodily injury' or "property
any similar law.
damage" occurs subsequent to the
e. Employer's Liability
execution of the contract or
agreement. Solely for the purposes of
"Bodily to:
y in N
liability assumed in an "insured
contract," reasonable attorney fees
1) An "employee' of the insured arising
and necessary litigation expenses
out of and in the course of:
incurred by or for a party other than
an insured are deemed to be part of
a) Employment by the insured; or
supplementary payments because of
"bodily injury" or "property damage,"
b) Performing duties related to the
provided:
conduct of the insured's
a) Liability to such party for, or for
business; or
the cost of, that party's defense
2) The spouse, child, parent, brother or
has also been assumed in the
sister of that "employee' as a
same "insured contract'; and
consequence of paragraph 1) above.
b) Such attorney fees and litigation This exclusion applies:
expenses are for defense of that
party against a civil or alternative 1) Whether the insured may be liable as
dispute resolution proceeding in an employer or in any other capacity;
which damages to which this and
insurance applies are alleged.
BP 7108 (Ed. 07 99) Page 3 of 20 Printed in U.S.A.
2) To any obligation Jere damages
with or repay someone else who
must pay damages because of the
injury.
This exclusion does not apply to liability
assumed by the insured under an
"insured contract"
f. Pollution
1) "Bodily injury,' "property damage,"
"personal injury," or "advertising
injury' arising out of the actual,
alleged or threatened discharge,
dispersal, seepage, migration,
release or escape of pollutants at any
time:
a) At or from any premises, site or
location which is or was at any
time owned or occupied by, or
rented or loaned to, any insured;
b) At or from any premises, site or
location which is or was at any
time used by or for any insured
or others for the handling,
storage, disposal, processing or
treatment of waste;
c) Which are or were at any time
transported, handled, stored,
treated, disposed of, or
processed as waste by or for
any insured or any person or
organization for whom you may
be legally responsible; or
d) At or from any premises, site or
location on which any insured or
any contractors or
subcontractors working directly
or indirectly on any insured's
behalf are performing
operations:
L If the pollutants are brought
on or to the premises, site
or location in connection
with such operations by
such insured, contractor or
subcontractor; or
If the operations are to test
for, monitor, clean up,
remove, contain, treat,
detoxify or neutralize, or in
any way respond to, or
assess the effects of
pollutants.
Subparagraph d) i. does not
apply to "bodily injury" or
"property damage" arising out of
the escape of fuels, lubricants or
other operating fluids which are
needed to perform the normal
electrical, hydraulic or
mechanical functions necessary
for the operation of "mobile
equipment' or its parts, if such
fuels, lubricants' or other
operating fluids escape from a
vehicle part designed to hold,
store or receive them. This
exception does not apply if the
fuels, lubricants or other
operating fluids are intentionally
discharged, dispersed or released,
or if such fuels, lubricants'or other
operating fluids are brought on or
to the premises, site or location
with the intent to be discharged,
dispersed or released as part of
the operations being performed
by such insured, contractor or
subcontractor.
Subparagraphs a) and d) i. do
not apply to "bodily injury' or
"property damage" arising out of
heat, smoke or fumes from a
"hostile fire."
As used in this exclusion, a
Hostile Fire means one which
becomes uncontrollable or
breaks out from where it was
intended to be.
2) Any loss, cost or expense arising out
of any:
a) Request, demand or order that
any insured or others test for,
monitor, clean up, remove,
contain, treat, detoxify or
neutralize, or in any way respond
to, or assess the effects of
pollutants; or
BP 7108 (Ed. 07 99) Page 4 of 20 Printed in U.S.A.
•�FJ'
b) Claim uit" by or on behalf of
Aebability assumed under any "insured
a governmental authority for
contract" for the ownership,
damages because of testing for,
-maintenance or use of aircraft or
monitoring, cleaning up,
watercraft; or
removing, containing, treating,
exclusion applies only to liability assumed
detoxifying or neutralizing, or in
5) "Bodily injury' or "property damage"
any way responding to, or
arising out of the operation of any of
assessing the effects of
the following equipment:
pollutants.
"Bodily injury," "property damage,"
a) Cherry pickers and similar
Pollutants means any solid, liquid,
devices mounted on automobile
gaseous or thermal irritant or contaminant,
or truck chassis and used to
including smoke, vapors, soot, fumes,
raise or lower workers; and
acids, alkalis, chemicals and waste.
Waste includes miterials to be recycled,
b) Air compressors, pumps and
reconditioned or reclaimed.
generators, including spraying,
welding, building cleaning,
However, the exclusion above does not
geophysical exploration, lighting
apply to "bodily injury' damage to
and well servicing equipment.
personal property of otherss, , including all
resulting loss of use of such property,
h. Mobile Equipment
occurring on any premises, site or location
which is owned by or rented to any
"Bodily injury' or "property damage"
insured, resulting from the sudden and
arising out of:
accidental discharge, dispersal, release or
escape of pollutants on such premises,
1) The transportation of "mobile
site or location.
equipment" by an "auto' owned or
g. Aircraft, Auto or Watercraft
operated by or rented or loaned to
any insured; or
"Bodily injury" or "property damage"
arising out of the ownership, 2) The use of "mobile equipment" in, or
maintenance, use or entrustment to while in practice for, or while being
others of any aircraft, "auto" or watercraft prepared for, any prearranged racing,
owned or operated by or rented or loaned speed or stunting activity.
to any insured. Use includes operation
and "loading or unloading" i. War
This exclusion does not apply to:
"Bodily injury' or "property damage" due to
war, whether or not declared, or any act or
1) A watercraft while ashore on
condition incident to war. War includes civil
premises you own or rent;
war, insurrection, rebellion or revolution. This
exclusion applies only to liability assumed
2) A watercraft you do not own that is:
under a contract or agreement.
a) Less than 26 feet long; and
j. Professional Services
b) Not being used to carry persons
or property for a charge;
"Bodily injury," "property damage,"
"personal injury' or "advertising injury'
3) Parking an "auto" on, or on the ways
due to rendering or failure to render any
next to, premises you own or rent,
professional service. This includes but is
provided the "auto' is not owned by
not limited to:
or rented or loaned to you or the
insured;
BP 7108 (Ed. 07 99) Page 5 of 20 Printed in U.S.A.
1) Legal, accounting • advertising
services;
2) Preparing, approving, or failing to
prepare or approve maps, drawings,
opinions, reports, surveys, change
orders, designs or specifications;
3) Supervisory, inspection or
engineering services•,
4) Medical, surgical, dental, x -ray or
nursing services, treatment, advice or
instruction;
5) Any health or therapeutic service,
treatment, advice or instruction;
6) Any service, treatment, advice or
instruction for the purpose of
appearance or skin enhancement,
hair removal or replacement or
personal grooming;
7) Optometry or, optical or hearing aid
services including the prescribing,
preparation, fitting, demonstration or
distribution of ophthalmic lenses or
similar products or hearing aid
devices;
8) Body piercing services; and
9) Services in the practice of pharmacy;
but this exclusion does not apply to
an insured whose operations include
those of a retail pharmacist or
pharmacy.
This insurance does not apply to
"bodily injury," "property damage,"
"personal injury' or "advertising
injury' caused by the willful violation
of a penal statute or ordinance
relating to the sale of
pharmaceuticals by or with the
knowledge or consent of any insured.
k. Damage to property
"Property damage" to:
1) Property you own, rent or occupy;
2) Preri0 you sell, give away or
abandon, if the "property damage"
arises out of any part of those
premises;
3) Property loaned to you;
4) Personal property in the care,
custody or control of the insured;
5) That particular part of real property
on which you or any contractor or
subcontractor working directly or
indirectly on your behalf is performing
operations, if the "property damage"
arises out of those operations; or
6) That particular part of any property
that must be restored, repaired or
replaced because "your work' was
incorrectly performed on it.
Paragraph 2) of this exclusion does not
apply if the "premises" are "your work"
and were never occupied, rented or held
for rental by you.
Paragraphs 3), 4), 5) and 6) of this
exclusion do not apply to liability assumed
under a sidetrack agreement. Paragraph
6) of this exclusion does not apply to
"property damage" included in the
"products- completed operations hazard"
i. Damage to Your Product
"Property damage' to 'your product"
arising out of it or any part of it.
m. Damage to Your Work
"Property damage" to "your work' arising
out of it or any part of it and included in
the "products- completed operations
hazard"
This exclusion does not apply if the
damaged work or the work out of which
the damage arises was performed on your
behalf by a subcontractor.
BP 7108 (Ed. 07 99) Page 6 of 20 Printed in U.S.A.
n. Damage to Faired Property or
Property Not Physically Injured
"Property damage" to "impaired property"
or property that has not been physically
injured, arising out of:
1) A defect, deficiency, inadequacy or
dangerous condition in "your product"
or "your work"; or
2) A delay or failure by you or anyone
acting on your behalf to perform a
contract or agreement in accordance
with its terms.
This exclusion does not apply to the loss
of use of other property arising out of
sudden and accidental physical injury to
"your product" or "your work' after it has
been put to its intended use.
o. Recall of Products, Work or Impaired
Property
Damages claimed for any loss, cost or
expense incurred by you or others for the
loss of use, withdrawal, recall, inspection,
repair, replacement, adjustment, removal
or disposal of.
1) "Your product';
2) "Your work; or
3) "Impaired property"
if such product, work or property is
withdrawn or recalled from the market or
from use by any person or organization
because of a known or suspected defect,
deficiency, inadequacy or dangerous
condition in it.
2OArising out of oral or written
publication of material, if done by or
-at the direction of the insured with
knowledge of its falsity;
3) Arising out of oral or written
publication of material whose first
publication took place before the
beginning of the policy period;
4) Arising out of the willful violation of a
penal statute or ordinance committed
by, at the direction of, or with the
knowledge or consent of any insured;
5) Arising out of breach of contract;
6) Arising out of the failure of goods,
products or services to conform with
advertised quality or performance;
7) Arising out of the wrong description
of the price of goods, products or
services;
8) Arising out of the rendering or failure
to render any professional service;
9) For which the insured is obligated to
pay damages by reason of the
assumption of liability in a contract or
agreement. This exclusion does not
apply to liability for damages that the
insured would have in the absence of
the contract or agreement, or
10) Arising out of the actual, alleged or
threatened discharge, dispersal,
seepage, migration, release or
escape of pollutants at any time.
This exclusion also applies to any
loss, cost or expense arising out of
any:
p. Personal or Advertising Injury a) Request, demand or order that
any insured or others test for,
"Personal injury' or "advertising injury': monitor, clean -up, remove,
contain, treat, detoxify or
1) Arising out of an offense committed neutralize, or in any way respond
by an insured whose business is to, or assess the effects of
advertising, broadcasting, publishing, pollutants; or
telecasting, or telemarketing.
However, this exclusion does not
apply to offenses a., b., c. under the
definition of "personal injury';
BP 7108 (Ed. 07 99) Page 7 of 20 Printed in U.S.A.
b) Claim or "suit. Aon behalf of
a governmental authority for
damages because of testing for,
monitoring, cleaning up,
removing, containing, treating,
detoxifying or neutralizing, or in
any way responding to, or
assessing the effects of
pollutants.
Pollutants mean any solid, liquid,
gaseous or thermal irritant or
contaminant, including smoke, vapor,
soot, fumes, acids, alkalis, chemicals
and waste. Waste includes materials
to be recycled, reconditioned or
reclaimed.
q. Intellectual Property
"Bodily injury;" "property damage,'
"personal injury' or "advertising injury'
arising out of actual or alleged:
1) Infringement of:
a) Patent;
b) Trademark or service mark;
c) Copyright, other than
copyrighted advertising
materials;
d) Trade name;
e) Trade dress;
f) Trade secrets;
g) Other intellectual property rights
or laws.
2) . Unfair competition; or
3) Antitrust violations.
r. Employment- Related Practices
"Bodily injury," "personal injury,' or
"advertising injury' to:
1) ' A person arising out of any:
a) Refusal to employ that person;
b) ' Oination of that person's
employment; or
c) Employment - related practices,
policies, acts or omissions, such
as coercion, demotion, evaluation,
reassignment, discipline,
defamation, harassment,
humiliation, or discrimination
directed at that person; or
2) The spouse, child, parent, brother or
sister of that person as a
consequence of "bodily injury' or
"personal injury" to that person at
whom any of the employment - related
practices described in paragraphs a),
b) or c) above is directed.
This exclusion applies:
1) Whether the insured maybe liable as
an employer or in any other capacity;
and
2) To any obligation to share damages
with or repay someone else who
must pay damages because of the
injury.
s. Asbestos
"Bodily injury;" ..property damage,'
"advertising injury" or "personal injury' of
any nature whatsoever, caused by, arising
out of or relating in any way to asbestos or
any asbestos containing product or
material, or to the use, installation,
removal, withdrawal or disposal of any
such product or material.
Exclusions c., d., e., f., g., h., i., k., 1., m., n.
and o. do not apply to damage by fire,
lightning, sprinkler leakage or explosion to
premises while rented to you or temporarily
occupied by you with permission of the owner.
A separate Limit of Insurance applies to this
coverage as described in Section D. —
LIABILITY AND MEDICAL EXPENSES
LIMITS OF INSURANCE.
SP 7108 (Ed. 07 99) Page 8 of 20 Printed in U.S.A.
2. Applicable to Medicexpenses Coverage
We will not pay expenses for "bodily injury":
a. To any insured;
b. To a person hired to do work for or on
behalf of any insured or a tenant of any
insured;
c. To a person injured on that part of
premises you own or rent that the person
normally occupies;
d. To a person, 'Whether or not an
"employee" of any insured, if benefits for
the "bodily injury' are payable or must be
provided under a workers compensation
or disability benefits law or a similar law;
e. To a person injured while taking part in
athletics;
IF. Included within the "products - completed
operations hazard';
g. Excluded under Business Liability
Coverage; or
h. Due to war, whether or not declared, or
any act or condition incident to war. War
includes civil war, insurrection, rebellion or
revolution.
3. Applicable to both Business Liability
Coverage and Medical Expenses Coverage
— Nuclear Energy Liability Exclusion
This insurance does not apply:
a. Under Business Liability Coverage, to
"bodily injury" or "property damage ":
1) With respect to which an insured
under the policy is also an insured
under a Nuclear Energy Liability
Policy issued by Nuclear Energy
Liability Insurance Association,
Mutual Atomic Energy Liability
Underwriters or Nuclear Insurance
Association of Canada, or would be
an insured under any such policy but
for its termination upon exhaustion of
its Limit of liability; or
Resulting from the "hazardous
properties" of "nuclear material" and
with respect to which:
a) Any person or organization is
required to maintain financial
protection pursuant to the
Atomic Energy Act of 1954, or
any law amendatory thereof; or
b) The insured is, or had this policy
not been issued would be,
entitled to indemnity from the
United States of America, or any
agency thereof, under any
agreement entered into by the
United States of America, or any
agency thereof, with any person
or organization.
b. Under Medical Expenses Coverage, to
expenses incurred with respect to "bodily
injury' resulting from the "hazardous .
properties" of "nuclear material" and
arising out of the operation of a "nuclear
facility' by any person or organization.
c. Under Business Liability Coverage, to
"bodily injury" or "property damage"
resulting from the "hazardous properties"
of "nuclear material," if:
1) The "nuclear material ":
a) Is at any "nuclear facility' owned
by, or operated by or on behalf
of an insured; or
b) Has been discharged or
dispersed therefrom;
2) The "nuclear material" is contained in
"spent fuel" or "waste" at any time
possessed, handled, used,
processed, stored, transported or
disposed of by or on behalf of an
insured; or
3) The "bodily injury' or "property
damage" arises out of the furnishing
by an insured of services, materials,
parts or equipment in connection with
the planning, construction,
maintenance, operation or use of any
"nuclear facility; but if such facility is
located within the United States of
America, its territories or
BP 7108 (Ed. 07 99) Page 9 of 20 Printed in U.S.A.
possessions or -�oada, this
"Nuclear M.41" means "source material,"
EXCLUSION 3) applies only to
"special nuclear material" or "by- product
"property damage" to such "nuclear
material ";
facility' and any property there at.
concentration of uranium or thorium
processing, fabricating or alloying of
"Nuclear Reactor" means any apparatus
As used in this exclusion:
designed or used to sustain nuclear fission in
time the total amount of such material
a self- supporting chain reaction or to contain a
"By- product Material" has the meaning
critical mass of fissionable material;
given it in the Atomic Energy Act of 1954 or in
person or organization of any
any law amendatory thereof;
"Property Damage" includes all forms of
contains more than 25 grams of
radioactive contamination of property;
"Hazardous Properties" include radioactive,
of "nuclear facility."
toxic or explosive properties;
"Source Material" has the meaning given it in
250 grams of uranium 235;
the Atomic Energy Act of 1954 or in any law
"Nuclear Facility" means:
amendatory thereof;
a) Any "nuclear reactor";
"Special Nuclear Material" has the meaning
given it in the Atomic Energy Act of 1954 or in
b) Any equipment or device designed or
any law amendatory thereof;
used for:
"Spent Fuel" means any fuel element or fuel
1) Separating the isotopes of
component, solid or liquid, which has been
uranium or plutonium;
used or exposed to radiation in a "nuclear
reactor';
2) Processing or utilizing "spent
fuel ": or
"Waste" means any "waste" material:
3) Handling, processing or
a) Containing "by- product material"
packaging "waste ";
other than the tailings or "wastes"
produced by the extraction or
c) Any equipment or device used for the
concentration of uranium or thorium
processing, fabricating or alloying of
from any ore processed primarily for
"special nuclear material" if at any
its "source material" content; and
time the total amount of such material
in the custody of the insured at the
b) Resulting from the operation by any
premises where such equipment or
person or organization of any
device is located consists of or
"nuclear facility' included under
contains more than 25 grams of
paragraphs a) and b) of the definition
plutonium or uranium 233 or any
of "nuclear facility."
combination thereof, or more than
250 grams of uranium 235;
C. WHO IS AN INSURED
d) Any structure, basin, excavation, 1. If you are designated in the Declarations as:
premises or place prepared or used
for the storage or disposal of "waste'; a. An individual, you and your spouse are
and insureds, but only with respect to the
conduct of a business of which you are
includes the site on which any of the foregoing the sole owner.
is located, all operations conducted on such
site and all premises used for such operations. b. A partnership or joint venture, you are an
insured. Your members, your partners
and their spouses are also insureds, but
only with respect to the conduct of your
business.
BP 7108 (Ed. 07 99) Page 10 of 20 Printed in U.S.A.
c. A limited liabiloompany, you are an
insured. Your members are also insureds,
but only with respect to the conduct of
your business. Your managers are
insureds, but only with respect to their
duties as your managers.
d. An organization other than a partnership,
joint venture or limited liability company,
you are an insured. Your "executive
officers" and directors are insureds, but
only with respect to their duties as your
officers or directors. Your stockholders
are also insureds, but only with respect to
their liability as stockholders.
2. Each of the following is also an insured:
a. Your "employees," other than either your
"executive officers' (if you are an
organization other than a partnership, joint
venture or limited liability company) or
your managers (if you are a limited liability
company), but only for acts within the
scope of their employment by you or while
performing duties related to the conduct
of your business. However, no °employee"
is an insured for:
1) "Bodily injury' or "personal injury":
a) To you, to your partners or
members (if you are a
partnership or joint venture), to
your members (if you are a
limited liability company), or to a
co- 'employee' while that co-
..employed' is either in the
course of his or her employment
or performing duties related to
the conduct of your business;
b) To the spouse, child, parent,
brother or sister of that co-
"employee" as a consequence of
paragraph 1) a) above;
c) For which there is any obligation
to share damages with or repay
someone else who must pay
damages of the injury described
in paragraphs 1) a) or b); or
BP 7108 (Ed. 07 99)
Page 11 of 20
•d) Arising out of his or her
providing or failing to provide
- professional health care
services. However, if you have
"employees" who are
pharmacists in your retail
pharmacist or pharmacy
operation, they are insured with
respect to their providing or
failing to provide professional
health care services; or
2) "Property damage" to property:
a) Owned, occupied or used by;
b) Rented to, in the care, custody
or control of, or over which
physical control is being
exercised for any purpose; by
you, any of your "employees," any
partner or member (if you are a
partnership or joint venture) or any
member (if you are a limited liability
company).
b. Any person (other than your "employee'),
or any organization while acting as your
real estate manager.
c. Any person or organization having proper
temporary custody of your property if you
die, but only.
1) With respect to liability arising out of
the maintenance or use of that
property, and
2) Until your legal representative has
been appointed.
d. Your legal representative if you die, but
only with respect to duties as such. That
representative will have all your rights and
duties under this policy.
3. With respect to "mobile equipment" registered
in your name under any motor vehicle
registration law, any person is an insured while
driving such equipment along a public highway
with your permission. Any other person or
organization responsible for the conduct of
such person is also an insured, but only with
Printed in U.S.A.
respect to liability arising out�,•operation of
the equipment, and only if no other insurance of
any kind is available to that person or
organization for this liability. However, no
person or organization is an insured with
respect to:
a. "Bodily injury' to a co- "employee" of the
person driving the equipment; or
b. "Property damage" to property owned by,
rented to, in the charge of or occupied by
you or the employer of any person who is
an insured under this provision.
4. Any person or organization who leases or rents
a portion of your premises to whom or to which
you are obligated by virtue of a written contract
or agreement is an insured, but only with
respect to liability arising out of your
ownership, maintenance or repair of that
portion of the premises which is not reserved
for the exclusive use or occupancy of such
person or organization or any other tenant or
lessee.
No person or organization is an insured with
respect to the conduct of any current or past
partnership, joint venture or limited liability company
that is not shown as a Named Insured in the
Declarations.
5. Additional Insureds by Contract,
Agreement or Permit
Any person or organization to whom or to
which you are obligated by virtue of a written
contract, agreement or permit to provide such
insurance as afforded by this policy is an
insured, but only with respect to liability arising
out of:
a. "Your work" for that insured by you;
b. Permits issued by state or political
subdivisions for operations performed by
you; or
c. Premises you own, rent, occupy or use.
This provision does not apply unless the
written contract or agreement has been
executed, or the permit has been issued, prior
to the "bou *jury ," .. property damage,"
"personal injury' or "advertising injury."
This provision does not apply to any person or
organization included as an insured under
Additional Insureds — Vendors.
D. LIABILITY AND MEDICAL EXPENSES LIMITS
OF INSURANCE
1. The Limits of Insurance shown in the
Declarations and the rules below fox the most
we will pay regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims
or bringing "suit."
2. The most we will pay for the sum of all
damages because of all:
a. "Bodily injury ," .. property damage" and
medical expenses arising out of any one
"occurrence"; and
b. "Personal injury' and "advertising injury'
sustained by any one person or
organization
is the Liability and Medical Expenses Limit
shown in the Declarations. But the most we will
pay for all Medical Expenses because of
"bodily injury' sustained by any one person is
the Medical Expenses Limit shown in the
Declarations.
3. The most we will pay under Business Liability
Coverage for damages because of "property
damage" to premises while rented to you or
temporarily occupied by you with permission of
the owner arising out of any one fire, lightning,
sprinkler leakage or explosion is the Fire Legal
Liability Limit shown in the Declarations.
4. Aggregate Limits
The most we will pay for:
a. Injury or damage under the "products -
completed operations hazard" arising from
all "occurrences" during the policy period
is the Products - Completed Operations
Aggregate Limit shown in the
Declarations.
BP 7108 (Ed. 07 99) Page 12 of 20 Printed in U.S.A.
b. All other injuA damage, including
medical expenses, arising from all
"occurrences" and offenses during the
policy period is the General Aggregate
Limit shown in the Declarations.
This General Aggregate Limit applies
separately to each of your locations
owned by or while rented to you, or
temporarily occupied by you with
permission of the owner.
Location means premises involving the
same or connecting lots, or premises
whose connectionis interrupted only by a
street, roadway, or right -of -way of a
railroad.
This aggregate Limit does not apply to
"property damage' to premises while
rented to you or temporarily occupied by
you with permission of the owner arising
cut of fire, lightning, sprinkler leakage or
explosion.
5. Priority Condition
In the event a claim or "suit" is brought against
more than one insured, due to "bodily injury,"
"property damage," "personal injury' or
"advertising injury" from the same
"occurrence" or offense, we will apply the
Limits of Insurance in the following order:
a. You;
b. Your "executive officers," directors,
stockholders, or "employees'; and
c. Any other insured in any order that we
choose.
The Limits of Insurance of this policy apply
separately to each consecutive annual period and to
any remaining period of less than 12 months,
starting with the beginning of the policy period
shown in the Declarations, unless the policy period
is extended after issuance for an additional period
of less than 12 months. In that case, the additional
period will be deemed part of the last preceding
period for purposes of determining the Limits of
Insurance.
E. LIABILITO AND MEDICAL EXPENSES
GENERAL CONDITIONS
1. Bankruptcy
Bankruptcy or insolvency of the insured or of
the insureds estate will not relieve us of our
obligations under this policy.
2. Duties In The Event Of Occurrence,
Offense, Claim Or Suit
a. You must see to it that we are notified as
soon as practicable of an "occurrence" or
an offense which may result in a claim. To
the extent possible, notice should include:
1) How, when and where the
"occurrence" or offense took place;
2) The names and addresses of any
injured persons and witnesses; and
3) The nature and location of any injury
or damage arising out of the
"occurrence" or offense.
b. If a claim is made or "suit" is brought
against any insured, you must:
1) Immediately record the specifics of
the claim or "suit" and the date
received; and
2) Notify us as soon as practicable.
You must see to it that we receive written
notice of the claim or "suit" as soon as
practicable.
c. You and any other involved insured must:
1) Immediately send us copies of any
demands, notices, summons or legal
paper received in connection with the
claim or "suit";
2) Authorize us to obtain records and
other information;
3) Cooperate with us in the investigation
or settlement of the claim, or defense
against the "suit'; and
BP 7109 (Ed. 07 99) Page 13 of 20 Printed in U.S.A.
4.
4) Assist us, upon ouisuest, in the
enforcement of any right against any
person or organization that may be
liable to the insured because of injury
or damage to which this insurance
may also apply.
d. No insured will, except at that insured's
own cost, voluntarily make a payment,
assume any obligation, or incur any
expense, other than for first aid, without
our consent.
Financial Responsibility Laws
a. When this policy is certified as proof of
financial responsibility for the future under
the provisions of any motor vehicle
financial responsibility law, the insurance
provided by the policy for "bodily injury'
liability and "property damage" liability will
comply with the provisions of the law to
the extent of the coverage and Limits of
Insurance required by that law.
b. With respect to "mobile equipment" to
which this insurance applies, we will
provide any liability, uninsured motorists,
underinsured motorists, no -fault or other
coverage required by any motor vehicle
law. We will provide the required. Limits
for those coverages.
Legal Action Against Us
No person or organization has a right under
this policy:
a. To join us as a party or otherwise bring us
into a "suit' asking for damages from an
insured; or
b. To sue us on this policy unless all of its
terms have been fully complied with.
A person or organization may sue us to
recover on an agreed settlement or on a final
judgment against an insured obtained after an
actual trial; but we will not be liable for
damages that are not payable under the terms
of this policy or that are in excess of the
applicable Limit of Insurance. An Agreed
Settlement means a settlement and release of
liability signE us, the insured and the
claimant or the claimant's legal representative.
5. Separation Of Insureds
Except with respect to the Limits of Insurance,
and any rights or duties specifically assigned
in this policy to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom
claim is made or "suit" is brought.
F. OPTIONAL COVERAGES
If shown as applicable in the Declarations, the
following Optional Coverages also apply. These
coverages are subject to the terms and conditions
applicable to the liability coverage in this policy,
except as provided below.
1. Hired Auto and Non -Owned Auto Liability
a. Insurance is provided only when indicated
in the Declarations.
1) Hired Auto Liability
The insurance provided under this
Coverage Form, paragraph A.1.,
Business Liability, applies to "bodily
injury' or "property damage' arising
out of the maintenance or use of a
hired auto by you or your
"employees" in the course of your
business.
2) Non -Owned Auto Liability
The insurance provided under this
Coverage Form, paragraph A.1.,
Business Liability, applies to "bodily
injury' or "property damage" arising
out of the use of any non -owned auto
in your business by any person other
than you.
b. For insurance provided by this Optional
Coverage only:
BP 7108 (Ed. 07 99) Page 14 of 20 Printed in U.S.A.
1) The exclusie, under this Coverage
•b) "Property damage" to:
Form, paragraph B.1., Applicable to
Business Liability Coverage, other
L Property owned or being
than exclusions a., b., d., f. and I. and
transported by, or rented or
the Nuclear Energy Liability
loaned to the insured; or
Exclusion, are deleted and replaced
by the following:
ii. Property in the care,
custody or control of the
a) "Bodily injury' to:
insured.
L An "employee" of the
2) Section C. — WHO IS AN INSURED
insured arising out of and in
in this Coverage Form, C., is
the course of:
replaced by the following:
ii) employment by the
Each of the following is an insured
insured; or
under this Optional Coverage to the
ii) Performing duties
extent set forth below:
related to the conduct
of the insured's
a) You;
business; or
b) Any other person using a hired
ii. The spouse, child, parent,
auto with your permission;
brother or sister of that
"employee" as a
c) For a non -owned auto, any
consequence of paragraph
partner or "executive officer" of
1) above.
yours, but only while such non -
owned auto is being used in your
This exclusion applies:
business; and
i. Whether the insured may
d) Any other person or
be liable as an employer or
organization, but only for their
in any other capacity; and
liability because of acts or
omissions of an insured under
ii. To any obligation to share
a), b) or c) above.
damages with or repay
someone else who must
None of the following is an insured:
pay damages because of
injury.
a) Any person engaged in the
business of his or her employer
This exclusion does not apply to:
for "bodily injury' to any co-
"employee" of such person
I. Liability assumed by the
injured in the course of
insured under an "insured
employment, or to the spouse,
contract "; or
child, parent, brother or sister of
that co- "employee' as a
ii. "Bodily injury' arising out of
consequence of such "bodily
and in the course of
injury," or for any obligation to
domestic employment by the
share damages with or repay
insured unless benefits for
someone else who must pay
such injury are in whole or in
damages because of the injury;
part either payable or
required to be provided
under any Workers
Compensation law.
SP 7108 (Ed. 07 99) Page 15 of 20 Printed in U.S.A.
b) Any partner or eotive officer'
for any "auto" owned by such
partner or officer or a member of
his or her household;
c) Any person while employed in or
otherwise engaged in duties in
connection with an auto
business, other than an auto
business you operate;
d) The owner or lessee (of whom
you are a sublessee) of a hired
auto or the oer of a non-
.0 1
owned auto or any agent or
"employee" of any such owner or
lessee; or
e) Any person or organization for
the conduct of any current or
past partnership, joint venture,
or limited liability company that is
not shown as a Named Insured
in the Declarations.
c. The following additional definitions apply:
1) Auto Business means the business
or occupation of selling, repairing,
servicing, storing or parking "autos."
2) Hired Auto means any "auto" you
lease, hire, rent or borrow. This
includes those "autos" your
"employees," executives, or partners,
or members of their households
lease, hire, rent or borrow on your
behalf.
3) Non -Owned Auto means any "auto"
you do not own, lease, hire, rent or
borrow that is used in connection
with your business. This includes
"autos" owned by your "employees"
or partners or members of their
households but only while used in
your business or your personal
affairs.
G. LIABILITY
DEFINITIONS
ANAI MEDICAL EXPENSES
1. "Advertising Injury" means injury, other than
"bodily injury" or "personal injury," arising
solely out of one or more of the following
offenses committed in the course of "your
advertising activities ":
a. Misappropriation of advertising ideas;
b. Infringement of copyrighted advertising
materials;
c. Oral or written publication of material that
slanders or libels a person or organization or
a person's or organization's goods, products
or services; or
d. Oral or written publication of material that
violates a person's right of privacy.
2. "Auto" means a land motor vehicle, trailer or
semitrailer designed for travel on public roads,
including any attached machinery or
equipment. But "auto" does not include "mobile
equipment."
3. "Bodily Injury" means "bodily injury,"
sickness or disease sustained by a person,
including death, shock, mental anguish or
mental injury by that person at any time which
results as a consequence of the "bodily injury,"
sickness or disease.
4. "Coverage Territory" means:
a. The United States of America (including
its territories and possessions), Puerto
Rico and Canada;
b. International waters or airspace, provided
the injury or damage does not occur in the
course of travel or transportation to or
from any place not included in a. above; or
c. All parts of the world if.
1) The injury or damage arises out of:
a) Goods or products made or sold
by you in the territory described
in a. above; or
BP 7108 (Ed. 07 99) Page 16 of 20 Printed in U.S.A. .
b) The accts of a person whose
home is in the territory described
in a. above, but is away for a
short time on your business; and
2) The insured's responsibility to pay
damages is determined in a "suit" on
the merits in the territory described in
a. above or in a settlement we agree
to.
5. "Employee" includes a "leased worker."
"Employee" does not include a "temporary
worker."
S. "Executive Officer" means a person holding
any of the officer positions created by your
charter, constitution, by -laws or any other
similar governing document.
7. "Impaired Property" means tangible
property, other than "your product" or "your
work," that cannot be used or is less useful
because:
a. It incorporates "your product" or "your
work' that is known or thought to be
defective, deficient, inadequate or
dangerous; or
b. You have failed to fulfill the terms of a
contract or agreement
if such property can be restored to use by:
1) The repair, replacement, adjustment or
removal of "your product" or. "your work';
or
2) Your fulfilling the terms of the contract or
agreement.
S. "insured Contract" means:
a. A contract for a lease of premises.
However, that portion of the contract for a
lease of premises that indemnifies any
person or organization for damage by fire,
lightning, sprinkler leakage or explosion to
premises while rented to you or
temporarily occupied by you with
permission of the owner is not an "insured
contract';
b. A sidetrack agreement;
c. )*easement or license agreement,
except in connection with construction or
demolition operations on or within 50 feet
of a railroad;
d. An obligation, as required by ordinance, to
indemnify a municipality, except in
connection with work for a municipality;
e. An elevator maintenance agreement; or
f. That part of any other contract or
agreement pertaining to your business
(including an indemnification of a
municipality in connection with work
performed for a municipality) under which
you assume the tort liability of another
party to pay for "bodily injury" or "property
damage" to a third person or organization.
Tort Liability means a liability that would
be imposed by law in the absence of any
contract or agreement.
Paragraph f. does not include that part of
any contract or agreement:
1) That indemnifies a railroad or
organization for "bodily injury' or
"property damage" arising out of
construction or demolition operations,
within 50 feet of any railroad property
and affecting any railroad bridge or
trestle, tracks, road beds, tunnel,
underpass or crossing,
2) That indemnifies an architect,
engineer or surveyor for injury or
damage arising out of.
a) Preparing, approving or failing to
prepare or approve maps,
drawings, opinions, reports,
surveys, change orders, designs
or specifications; or
b) Giving directions or instructions,
or failing to give them, if that is
the primary cause of the injury or
damage.
BP 7108 (Ed. 07 99) Page 17 of 20 Printed in U.S.A.
3) Under which theGred, if an
architect, engineer or surveyor,
assumes liability for an injury or
damage arising out of the insured's
rendering or failure to render
professional services, including those
listed in 2) above and supervisory,
inspection or engineering services.
9. "Leased Worker" means a person leased to
you by a labor leasing firm under an agreement
between you and the labor leasing firm, to
perform duties related to the conduct of your
business. "Leased worker" does-not include a
"temporary worker."
10. "Loading or Unloading" means the handling
of property:
a. After it is moved from the place where it is
accepted for movement into or onto an
aircraft, watercraft or "auto';
b. While it is in or on an aircraft, watercraft
or "auto "; or
c. While k is being moved from an aircraft,
watercraft or "auto" to the place where it is
finally delivered
but "loading or unloading" does not include the
movement of property by means of a
mechanical device, other than a hand truck,
that is not attached to the aircraft, watercraft or
"auto."
11. "Mobile Equipment" means any of the
following types of land vehicles, including any
attached machinery or equipment:
a. Bulldozers, farm machinery, forklifts and
other vehicles designed for use principally
off public roads;
b. Vehicles maintained for use solely on or
next to premises you own or rent;
c. Vehicles that travel on crawler treads;
d. Vehicles, whether self - propelled or not, on
which are permanently mounted:
1) Powiaranes, shovels, loaders,
diggers or drills; or
2) Road construction or resurfacing
equipment such as graders, scrapers
or rollers;
e. Vehicles not described in a., b., c. or d.
above that are not self- propelled and are
maintained primarily to provide mobility to
permanently attached equipment of the
following types:
1) Air compressors, pumps and
generators, including spraying,
welding, building cleaning,
geophysical exploration, lighting and
well servicing equipment; or
2) Cherry pickers and similar devices
used to raise or lower workers;
f. Vehicles not described in a., b., c. or d.
above maintained primarily for purposes
other than the transportation of persons or
cargo.
However, self - propelled vehicles with the
following types of permanently attached
equipment are not "mobile equipment" but
will be considered "autos ":
1) Equipment designed primarily for:
a) Snow removal;
b) Road maintenance, but not
construction or resurfacing; or
c) Street cleaning;
2) Cherry pickers and similar devices
mounted on automobile or truck
chassis and used to raise or lower
workers; and
3) Air compressors, pumps and
generators, including spraying,
welding, building cleaning,
geophysical exploration, lighting and
well servicing equipment.
12. "Occurrence" means an accident, including
continuous or repeated exposure to
substantially the same general harmful
conditions.
BP 7108 (Ed. 07 99) Page 18 of 20 Printed in U.S.A.
For the purpose of lrmining the Limits of
b. Or work" will be deemed completed at
insurance for professional health care services
the earliest of the following times:
as a pharmacist, any act or omission together
with all related acts or omissions in the
1) When all of the work called for in
furnishing of these services to any one person
your contract has been completed.
will be considered one "occurrence."
2) When all of the work to be done at
13. "Personal Injury" means injury, other than
the job site has been completed if
"bodily injury" or "advertising injury," arising
your contract calls for work at more
solely out of one or more of the following
than one job site.
offenses:
3) When that part of the work done at a
a. False arrest, detention or imprisonment;
job site has been put to its intended
use by any person or organization
b. Malicious prosecution;
other than another contractor or
subcontractor working on the same
c. The wrongful eviction from, wrongful entry
project.
into, or invasion of the right of private
occupancy of a room, dwelling or
Work that may need service,
premises that a person or organization
maintenance, correction, repair or
occupies, if committed by or on behalf of
replacement, but which is otherwise
its owner, landlord or lessor;
complete, will be treated as completed.
d. Oral or written publication of material that c. This hazard does not include "bodily
slanders or Ibels a person or organization or injury' or "property damage" arising out of:
a persons or organization's goods, products
or services; or 1) The transportation of property, unless
the injury or damage arises out of a
e. Orel or written publication of material that condition in or on a vehicle not owned
violates a person's right of privacy. or operated by you, and that condition
was created by the "loading or
14. "Products— Completed Operations Hazard" unloading" of that vehicle by any
includes all "bodily injury' and "property insured; or
damage' arising out of "your product" or "your
work". 2) The existence of tools, uninstalled
equipment or abandoned or unused
a. Except: materials.
1) Products that are still in your physical 15. "Property Damage" means:
possession; or
a. Physical injury to tangible property,
2) Work that has not yet been including all resulting loss of use of that
completed or abandoned. property, All such loss of use shall be
deemed to occur at the time of the
The "bodily injury' or "property damage" physical injury that caused it; or
must occur away from premises you own
or rent, unless your business includes the b. Loss of use of tangible property that is not
selling, handling or distribution of "your physically injured. All such loss of use
product" for consumption on premises shall be deemed to occur at the time of
you own or rent. the "occurrence" that caused it.
BP 7108 (Ed. 07 99) Page 19 of 20 Printed in U.S.A.
16. "Suit" means a civil proc�log in which
damages because of "bodily injury," "property
damage," "personal injury" or "advertising
injury' to which this insurance applies are
alleged. "Suit" includes:
a. An arbitration proceeding alleging such
damages to which the insured must
submit or does submit with our consent;
or
b. Any other alternative dispute resolution
proceeding in which such damages are
claimed and to which the insured submits
with our consent.
17. "Temporary Worker" means a person who is
furnished to you to substitute for a permanent
"employee" on leave or to meet seasonal or
short-term workload conditions.
18. "Your Advertising Activities" means the
promotion of your goods, products, services,
name or image through printed or electronic
media.
19. "Your Product" means:
a. Any goods or products, other than real
property, manufactured, sold, handled,
distributed or disposed of by:
1) You;
2) Others trading under your name; or
3) A person or
business or
acquired; and
organization whose
assets you have
b. Containei• (other than vehicles),
materials, parts or equipment furnished in
connection with such goods or products.
"Your product" includes:
a. Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use of
"your product"; and
b. The providing of or failure to provide
warnings or instructions.
"Your product" does not include vending
machines or other property rented to or located
for the use of others but not sold.
20. "Your Work" means:
a. Work or operations performed by you or
on your behalf; and
b. Materials, parts or equipment furnished in
connection with such work or operations.
"Your work'includes:
a. Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use of
"your work"; and
b. The providing of or failure to provide
warnings or instructions.
Includes copyrighted material of the Insurance Services Office with its permission.
BP 7109 (Ed. 07 99) Page 20 of 20 Printed in U.S.A.
OCT -08 -2002 TUE 03:03 PM CAL SURANCE FAX NO, 7149391654
Fax #: (V`1-4M-3-3187
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach.
Date Received: ^ a)- C
Date Cam plated: r0 -p_�k— Sent to:
Company /Person required to have certificate:
P, 01
Received From:. (l +'fa-
u t.Y1 CL By: 6 ✓i 1 (,c � i Ici2 ✓
I. GENERAL LIABILITY y
A_ INSURANCE COMPANY: Tlfin/ IC_&,a_ �I0' lS+ .LY)s
i! Cam.
B. AM BEST RATING (A: VII or greater): 74 - X1
C ADMITTED Company (Must be California Admitted):
ffm
Is Company admitted in California? Yes ❑ No
D. LIMITS (Must be $1 M or greater): What is limit provided? o�
E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? �Zi'es No
R ADDITIONAL INSURED WORDING TO INCLUDE (The City its
officers, officials, employees and volunteers): Is it included? �nes ❑ No
G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included):
Is it included? ryes ❑ No
H. CAUTION! (Confirm that loss or liability of the named insured is not
limited solely by their negligence) Does endorsement include "solely by
negligence" wording? Cl Yes NNo
I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of
cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording.
AUTOMOBILE LIABILITY
A. INSURANCE COMPANY:
B. AM BEST RATING (A: VII
C. ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in Cal'rfomia? Yes El No
D. LIMITS (Must be $1M min. BI & PD and $500,000 UM): What is limits provided? rn -,
E, ADDITIONAL INSURED WORDING TO INCLUDE (The City its
officers, officials, employees and volunteers): Is it included? t-Yes ❑ No
F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): 0 / a-
Is it included? ` ❑ Yes ❑ No
G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of
cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording.
M. WORKERS' COMPENSATION
A. INSURANCE COMPANY:
B. AM BEST RATING (A: VII or greater): Fir K► V _
C. LIMITS: Statutory
D. WAIVER OF SUBROGATION (To )nclude): Is it included?
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO. WHICH ITEMS NEED TO BE COMPLETED?
N
Wes ❑ No
❑ Yes XNo
TO: Mayor and Members of the City Council
FROM: Public Works Department
September 10, 2002
CITY COUNCIL AGENDA
ITEM NO. 4
SUBJECT: CONSTRUCTION SUPPORT SERVICES WITH PRO SOURCE, INC.
APPROVAL OF AMENDMENT NO. 2 TO THE PROFESSIONAL
SERVICES AGREEMENT
RECOMMENDATION:
Approve Amendment No. 2 to the Professional Services Agreement for construction
services with Pro Source, Inc. in the amount of $27,000.00.
DISCUSSION:
A Public Works contract construction inspector was retained through ProSource, Inc. in
November 13, 2001, using an informal contract. Amendment No. 1 to that Professional
Services Agreement was approved by City Council on February 26, 2002, extending the
contract to September 30, 2002. The current and upcoming inspection workload for
Capital Improvement Program (CIP) construction projects continues to require additional
inspection staff. This additional inspector is especially needed due to the recent
retirement of two of the construction section Staff, one of them a Senior Public Works
Inspector. Recruitment for a replacement Public Works Inspector is under way at this
time; however it is expected that there will be at least a two -month period before the
replacement inspector is hired and another two- months required to acclimate the new
inspector before he /she can take on a full load of projects.
A contract time extension for the current contract inspector will help meet the interim
needs of the Public Works Department until the new staff inspector can be hired and
brought up to speed. Amendment No. 2 is necessary to maintain a staffing level that can
inspect the current and future inspection workload.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, this contract
inspector will be assigned to various construction projects with the following general
scope of work:
1. Inspect construction work for assigned projects on a daily basis. Ensure work
done is per contract specifications and plan drawings.
SUBJECT: CONSTRUCTION PORT SERVICES WITH PRO SOURCE, IN APPROVAL OF
AMENDMENT NO. O THE PROFESSIONAL SERVICES AGREE ENT
September 10, 2002
Page 2
2. Coordinate the contractor's work with residents, businesses, other City
departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with contractor's superintendent to submit to
construction engineer for monthly progress payments.
4. Inform construction engineer of potential project changes. Obtain contractor cost
estimates for suggested changes and for approval by construction engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Funds are available in the Public Works, Engineering Division, Operations and
Maintenance Account No. 5100 -8080 in the amount of $27,000 to cover the costs of the
additional contract inspection services.
Respectfully _ subm'
,
_ -----------
UBLIC Wfd KS DEPARTMENT
C LL Steve B um, Director
i
By:
R. Gunther, P.E.
Construction Engineer
Attachments: Amendment No. 2
Amendment No. 1
Professional Services Agreement
Council Memo dated February 26, 2002
Council Memo dated November 13, 2001
0
0
PROFESSIONAL SERVICES AGREEMENT
FOR CONSTRUCTION SUPPORT SERVICES
AMENDMENT NO. 2
THIS AMENDMENT
NO. 2 TO
PROFESSIONAL
SERVICES
AGREEMENT, entered into this
day of
, 2002,
by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as "CITY ") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant "), is made with
reference to the following:
RECITALS:
A. On November 26, 2001, CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as "AGREEMENT', for
Construction Inspection services.
B. On February 26, 2002, CITY and CONSULTANT amended the
Professional Services Agreement by executing Amendment No. 1.
B. CITY desires to enter into this AMENDMENT NO. 2 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to January 15, 2003.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as "AMENDMENT NO. 2 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTANT shall be compensated for services performed
pursuant to this AMENDMENT NO. 2.
F:\ USERS \PBW\ Shared \Agreemen[s\ProSource Amend No. 2.doc
0 0
2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 2 shall not exceed twenty seven
thousdand and 00/100 Dollars ($27,000).
3. The term of the AGREEMENT shall be extended to January 15,
2003.
4. Except as expressly modified
herein, all other
provisions,
terms,
and covenants set forth in AGREEMENT shall remain unchanged
and shall be
in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO. 2 on the date first above written.
CITY OF NEWPORT BEACH,
A municipal corporation
Ll7
APPROVED AS TO FORM: Mayor
City of Newport Beach
By: _
City Attorney
Pro Source, Inc.
AM
ATTEST:
LaVonne Harkless
City Clerk
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AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH PRO SOURCE
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES
AGREEMENT, entered into this day of , 2002, by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as "CITY ") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant'), is made with
reference to the following:
RECITALS:
A. On November 26. 2001. CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as "AGREEMENT, for
Construction Inspection services.
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to September 30, 2002.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as "AMENDMENT NO. 1 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTANT shall be compensated for services performed
pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated November 26,
2001, attached hereto.
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2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 1 shall not exceed forty -five thousand
and 001100 Dollars ($45,000.00).
2002.
3. The term of the AGREEMENT shall be extended to September 30,
4. Except as expressly modified herein, all other provisions, terms,
and covenants set forth in AGREEMENT shall remain unchanged and shall be in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO. 1 on the date first above written.
CITY OF NEWPORT BEACH,
A municipal corporation
(-M
APPROVED AS TO FORM: Mayor
City of Newport Beach
By:
City Attorney
ATTEST:
By:
LaVonne Harkless
City Clerk
Pro Source, Inc.
M
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PROFESSIONAL SERVICES AGREEMENT
FOR
CONSTRUCTION SUPPORT SERVICES
THIS AGREEMENT, entered into this day of , 2001, by and
between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as
"City "), and Pro Source, Inc., whose address is 1221 E. Dyer Road, Suite 200, Santa Ana,
CA 92705, (hereinafter referred to as "Consultant'), 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 Consultant to perform construction inspection services
upon the terms and conditions contained in this Agreement.
C. The principal member of Consultant for purpose of this Agreement is Scott
Ryan.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
contract with Consultant under the terms and conditions provided 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 _ day of
2001, and shall terminate on the 28'" day of February 2002, unless terminated earlier as set
forth herein.
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2. SERVICES TO BE PERFORMED
Consultant shall provide Construction Inspection services. (Consultant Fact Sheet
attached as Exhibit "A ".) Upon verbal request from Services Administrator, Consultant shall
provide letter proposals for services requested by the City. The letter proposal shall include
the estimated cost and time to complete the services, including the estimated number of
hours and position for each person assigned to perform the services contained in the letter
proposal. No Services shall be provided until the City has provided written acceptance of the
letter proposal. Consultant shall diligently perform the duties in the approved letter proposals,
in accordance with the terms and conditions of this Agreement.
3. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of this
Section and the scheduled billing rates set forth in Appendix "B" to Exhibit "A" attached hereto
and incorporated herein by reference. No rate changes shall be made during the term of this
Agreement without prior written approval of City. Consultant's compensation for all services
performed in accordance with this Agreement shall not exceed the total contract price of
Twenty Nine Thousand Three Hundred Seventy Six Dollars ($29,376).
3.1 Consultant shall maintain accounting records of its billings which includes the
name of the employee, type of work performed, times and dates of all work which is billed on
an hourly basis, what task the work is for and all approved incidental expenses including
reproductions, computer printing, postage and mileage.
3.2 Consultant shall submit monthly progress invoices to City payable by City within
thirty (30) days of receipt of invoice.
3.3 Consultant shall not receive any compensation for extra work without prior
written authorization of City. Any authorized compensation shall be paid in accordance with
the schedule of the billing rates as set forth in Exhibit "B ".
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3.4 City shall reimburse Consultant only for those costs or expenses, which have
been specifically approved in advance by City. Such cost shall be limited and shall include
nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the services which
Consultant agrees to render pursuant to this Agreement which have been
approved in advance by City and in accordance with the terms and conditions of
this Agreement.
B. Approved computer data processing and reproduction charges.
C. Actual costs and /or other costs and /or payments specifically authorized in
advance in writing and incurred by Consultant in the performance of this
Agreement.
4. STANDARD OF CARE
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the services required by this Agreement and that it will perform
all services in a manner commensurate with the community professional standards. All
services shall be performed by qualified and experienced personnel who are not employed by
City nor have any contractual relationship with City. Consultant represents to City that it has
or shall obtain all licenses, permits, qualifications and approvals required of its profession.
Consultant further represents that it shall keep in effect all such licenses, permits and other
approvals during the term of this Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, failure of City to furnish timely information or to promptly
approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or
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governmental agencies, or any other delays beyond Consultant's control.
4.3 The term Construction Inspection does not imply that Consultant is engaged in
any aspect of the physical work of construction contracting. Consultant shall not have control
over or charge of, and shall not be responsible for Project's design, Project's contractor
(hereinafter referred to as "Contractor'), construction means, methods, techniques,
sequences or procedures, or for any health or safety precautions and programs in connection
the work. These duties are and shall remain the sole responsibility of the Contractor.
Consultant shall not be responsible for the Contractor's schedules or failure to carry out the
work in accordance with the contract documents. Consultant shall not have control over or
charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their
Agents or employees, or of any other persons performing portions of the work.
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
Consultant, except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute
Consultant or any of Consultant's employees or agents to be the agents or employees of City.
Consultant shall have the responsibility for and control over the details and means of
performing the work provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement which may appear to give City the right to direct
Consultant as to the details of the performance of the services or to exercise a measure of
control over Consultant shall mean that Consultant shall follow the desires of City only in the
results of the services.
6. COOPERATION
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Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies, which may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with Consultant on Project.
7. PROJECT MANAGER
Consultant shall assign Agreement to a Services Manager, who shall coordinate all
aspects of this Agreement. This Services Manager shall be available to City at all reasonable
times during term of Project. Consultant has designated Scott Ryan to be its Services
Manager. Consultant shall not remove or reassign any personnel designated in this Section
or assign any new or replacement person to Project without the prior written consent of City.
City's approval shall not be unreasonably withheld with respect to removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from Project any of its personnel
assigned to the performance of services upon written request of City. Consultant warrants it
will continuously furnish the necessary personnel to complete Project on a timely basis as
contemplated by this Agreement.
B. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement and
Consultant shall perform the services in a timely manner. The failure by Consultant to strictly
perform in a timely manner may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due
to causes beyond Consultant's reasonable control. However, in the case of any such delay in
the services to be provided for Project, each party hereby agrees to provide notice to the
other party so that all delays can be addressed.
8.1 Consultant shall submit all requests for extensions of time for performance in
writing to the Project Administrator not later than ten (10) calendar days after the start of the
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condition, which purportedly causes a delay, but not later than the date upon which
performance is due. The Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays, which are beyond Consultant's control.
8.2 For all time periods not specifically set forth herein, Consultant shall respond in
the most expedient and appropriate manner under the circumstances by telephone, fax, hand
delivery or mail.
9. CITY POLICY
Consultant shall discuss and review all matters relating to policy and project direction
with the Project Administrator in advance of all critical decision points in order to ensure that
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City Council.
11. PROGRESS
Consultant is responsible to keep the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of the
work, activities performed and planned, and any meetings that have been scheduled or are
desired.
12. HOLD HARMLESS
Consultant shall indemnify, defend, save and hold harmless City, its City Council,
boards and commissions, officers and employees from and against any and all loss,
damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property
damages, or any other claims arising from any and all negligent acts or omissions of
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Consultant, its employees, agents or subcontractors in the performance of services or work
conducted or performed pursuant to this Agreement, excepting only the active negligence or
willful misconduct of City, its officers or employees, and shall include attorneys' fees and all
other costs incurred in defending any such claim. 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.
13. INSURANCE
Without limiting consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain and provide and maintain at its own expense during the term of
this Agreement policy or policies of liability insurance of the type and amounts described
below and satisfactory to City. Certification of all required policies shall be signed by a person
authorized by that insurer to bind coverage on its behalf and must be filed with City prior to
exercising any right or performing any work pursuant to this Agreement. Except workers
compensation and errors and omissions, all insurance policies shall add City, its elected
officials, officers, agents, representatives and employees as additional insured for all liability
arising from Consultant's services as described herein.
Insurance policies with original endorsements indemnifying Project for the following
coverages shall be issued by companies admitted to do business in the State of California
and assigned Best's A- VII or better rating:
A. Worker's compensation insurance, which includes the 'Waiver of Subrogration"
clause, covering all employees and principals of Consultant, per the laws of the
State of California.
B. Commercial general liability insurance, including the primary and non-
contributory wording, covering third party liability risks, including without
limitation, contractual liability, in a minimum amount of $1 million combined
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single limit per occurrence for bodily injury, personal injury and property
-damage. If commercial general liability insurance or other form with a general
aggregate is used, either the general aggregate shall apply separately to this
Project, or the general aggregate limit shall be twice the occurrence limit.
C. Commercial auto liability and property insurance, including the primary and non-
contributory wording, covering any owned and rented vehicles of Consultant in
a minimum amount of $1 million combined single limit per accident for bodily
injury and property damage.
Said policy or policies shall be endorsed to state that coverage shall not be canceled
by either party, except after thirty (30) days prior notice has been given in writing to City.
Consultant shall give City prompt and timely notice of claim made or suit instituted arising out
of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be
necessary for its proper protection and prosecution of the work.
Consultant agrees that in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general and automotive liability insurance, which
Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on
behalf of any insurer providing workers compensation, comprehensive general, and
automotive liability insurance to either Consultant or City with respect to the services of
Consultant herein, a waiver of any right of subrogation, which any such insurer of said
Consultant may acquire against City by virtue of the payment of any loss under such
insurance.
14. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any
of the services to be performed under this Agreement, directly or indirectly, by operation of
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law or otherwise without prior written consent of City. Any attempt to do so without consent of
City shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or
syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. 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.
15. OWNERSHIP OF DOCUMENTS
Each and every report, draft, work product, map, record and other document
reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection
with this Agreement shall be the exclusive property of City.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or others on
any other project. Any use of completed documents for other projects and any use of
incomplete documents without specific written authorization from Consultant will be at City's
sole risk and without liability to Consultant. Further, any and all liability arising out of changes
made to Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived as against Consultant and City assumes full responsibility for such
changes unless City has given Consultant prior notice and has received from Consultant
written consent for such changes.
Consultant shall, at such time and in such forms as City may require, furnish reports
concerning the status of services required under this Agreement.
16. CONFIDENTIALITY
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The information, which results from the services in this Agreement, is to be kept
confidential unless City authorizes the release of information.
17. ADMINISTRATION
The Public Works Department will administer this Agreement. Robert Gunther shall be
considered the Services Administrator and shall have the authority to act for City under this
Agreement. The Services Administrator or his /her authorized representative shall represent
City in all matters pertaining to the services to be rendered pursuant to this Agreement.
18. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and accurate records
with respect to the costs incurred under this Agreement. All such records shall be clearly
identifiable. Consultant shall allow a representative of City during normal business hours to
examine, audit and make transcripts or copies of such records. Consultant shall allow
inspection of all work, data, documents, proceedings and activities related to the Agreement
for a period of three (3) years from the date of final payment under this Agreement.
19. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute with
respect to such payment. Such withholding shall not be deemed to constitute a failure to pay
according to the terms of this Agreement. Consultant shall not discontinue work for a period
of thirty (30) days from the date of withholding as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of seven percent (7 %) per annum from the date of withholding of any amounts found
to have been improperly withheld.
20. ERRORS AND OMISSIONS
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In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than would have resulted if
there were not errors or omissions in the work accomplished by Consultant, the additional
design, construction and /or a restoration expense shall be bome by Consultant. Nothing in
this paragraph is intended to limit City's rights under any other sections of this Agreement.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in connection with Agreement.
22. CONFLICTS OF INTEREST
A. Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose financial interest that may foreseeably be materially affected by the
work performed under this Agreement, and (2) prohibits such persons from
making, or participating in making, decisions that will foreseeably financially
affect such interest.
B. If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Consultant shall indemnify and hold harmless City for
any and all claims for damages resulting from Consultant's violation of this
Section.
23. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior
written approval of City.
24. NOTICES
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All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
third business day after the deposit thereof in the United States mail, postage prepaid, first
class mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Consultant to City shall be addressed
to City at:
Robert Gunther, P.E.
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA, 92658 -8915
(949) 644 -3311
Fax (949) 644 -3318
All notices, demands, requests or approvals from City to Consultant shall be addressed
to Consultant at:
Attention: Scott Ryan
Pro Source, Inc.
1221 E. Dyer Road
Suite 200
Santa Ana, CA 92705
714 - 755 -4100
Fax: 714- 755 -4104
25. TERMINATION
In the event either part hereto fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, 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) days, or
if more than two (2) days are reasonably required to cure the default and the defaulting party
fails to give adequate assurance of due performance within two (2) days after receipt by
defaulting party from the other party of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, the nondefaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
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25.1 City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein.
Upon termination of this Agreement, City shall pay to Consultant that portion of
compensation specified in this Agreement that is earned and unpaid prior to the effective date
of termination.
26. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
27. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant or condition contained herein whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions hereon. Any modification of this Agreement will be effective
only by written execution signed by both City and Consultant.
29. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of City. Since
Consultant has no control over the cost of labor and material, or over competitive bidding or
market conditions, Consultant does not guarantee the accuracy of such opinions as
compared to contractor bids or actual cost to City.
30. PATENT INDEMNITY
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Consultant shall indemnify City, its agents, officers, representatives and employees
against liability, including costs, for infringement of any United States' letters patent,
trademark, or copyright infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
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City Attorney
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CITY OF NEWPORT BEACH
A Municipal Corporation
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Stephen G. Badum
Public Works Director
Pro Source, Inc.
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TO: Mayor and Members of the City Council
FROM: Public Works Department
February 26, 2002
CITY COUNCIL AGENDA
ITEM NO.
SUBJECT: APPROVAL OF AMENDMENT NO. 1 TO THE PROFESSIONAL
SERVICES AGREEMENT FOR CONSTRUCTION SUPPORT SERVICES
WITH PRO SOURCE, INC.
RECOMMENDATION:
Approve Amendment No. 1 to the Professional Services Agreement for construction
services with Pro Source, Inc.
DISCUSSION:
On November 13, 2001, the Council authorized a budget amendment appropriating
$150,000 for contract inspection services. Public Works inspection staff needed to be
increased by two contract inspectors as soon as possible to be able to provide necessary
inspections for current and future construction projects, as well as Encroachment Permit
inspections. The first inspector was retained via that Council approval and is being used
on the Ocean Pier Rehabilitation project.
The second inspector was retained using an informal contract that did not require Council
approval. This inspector has many years of municipal inspection experience and has
adjusted well to inspecting Newport Beach projects. The current and upcoming
inspection workload for CIP construction projects will require continued additional
inspection staff. The original contract amount for inspection services is approaching the
threshold amount that requires Council approval and we are therefore bringing the
amendment to the agreement to Council for approval.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, this contract
inspector will be assigned various construction projects with the following general scope
of work:
1. Inspect construction work for assigned projects on a daily basis. Ensure work
done is per contract specifications and plan drawings.
SUBJECT: Approval of Amend noo. 1 to the Professional Services Agreement for de-uction Support Services with Pro
Source, Inc.
February 26, 200:2
Page 2
2. Coordinate the Contractor's work with residents, businesses, other City
Departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with Contractor's Superintendent to submit to
Construction Engineer for monthly progress payments.
4. Inform Construction Engineer of potential project changes. Obtain Contractor cost
estimates for suggested changes and for approval by Construction Engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Council approved the expenditure for this contract inspection on November 13, 2001. Per
that approval, the expenditure was initially being authorized in the General Fund as an
operating expenditure. At year -end these expenditures will be allocated back to the
specific CIP's utilizing the inspection services. The General Fund will be reimbursed if the
inspection services were utilized for CIP's funded by sources other than the General
Fund.
Respectfully submitted,
PUBLIC WORKS DEPARTMENT
Steve Badum, Director
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R. Gunther, P.E.
Construction Engineer
Attachments: Amendment No. 1
Agreement
Council Memo, November 13, 2001
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TO: Mayor and Members of the City Council
FROM: Public Works Department
November 13, 2001
CITY COUNCIL AGENDA
ITEM NO,
SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT FOR
PUBLIC WORKS INSPECTION SERVICES
RECOMMENDATIONS:
1. Approve a Professional Services Agreement for Inspection Services with Quantum
Consulting for $75,000, and authorize the Mayor and the City Clerk to execute the
Agreement.
2. Authorize a Budget Amendment appropriating $150,000 to 5100 -8080 (Services —
Professional & Technical) from General Fund unappropriated surplus fund balance.
DISCUSSION:
Currently the inspection demands on the City's three full -time inspectors far exceeds their
capacity. There are approximately 16 projects in various stages of construction at this
time and an additional 5 projects scheduled to be awarded before January 1, 2002. From
January 1, 2002 through July 1, 2002 Staff anticipates the award of an additional 20
construction projects. Our inspection staff needs to be increased by two contract
inspectors as soon as possible to be able to provide necessary inspections for current
and future construction projects as well as Encroachment Permit inspections.
The first inspector is needed to provide inspection of the Newport and Balboa Piers
Rehabilitation Project. The Quantum Consulting proposal in the amount of $75,000 offers
the services of an inspector with over 35 years of Public Works experience and ocean -
related project experience with the City of Los Angeles Ports and Harbors Department.
The second inspector is needed to inspect various CIP construction projects scheduled to
begin shortly. Staff is communicating with several other firms to find this inspector. It is
anticipated an additional $75,000 will be needed for these services and another
Agreement will be brought to Council for consideration at a future meeting.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, the contract
inspectors will be assigned to the Pier Rehabilitation and various other construction
projects with the following general scope of work:
SUBJECT: Approval of Professio* "ices Agreement for Public Works Inspection Se
Date: November 13, 2001
Page 2
1. Inspect construction work for assigned projects on a daily basis. Insure work done
is per contract specifications and plan drawings.
2. Coordinate the Contractor's work with residents, businesses, other City
Departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with Contractor's Superintendent to submit to
Construction Engineer for monthly progress payments.
4. Inform Construction Engineer of potential project changes. Obtain Contractor cost
estimates for suggested changes and for approval by Construction Engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Staff is requesting Council to authorize a total of $150,000 to the Public
Works /Engineering Operations budget to facilitate the payment of these services
throughout the fiscal year. Although this expenditure is initially being authorized in the
General Fund as an operating expenditure, at year -end, these expenditures will be
allocated back to the specific CIP's the inspection services were utilized for. The
General Fund will be reimbursed if the inspection services were utilized for CIP's
funded by sources other than the General Fund,
Respectfully submitted,
PUBLIC WORKS DEPARTMENT
Stephen G. Badum, Director
i�
R. Gunther, P.E.
Construction Engineer
Attachment: Agreement
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH PRO SOURCE
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES
AGREEMENT, entered into this alr� day of 2002, by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as "CITY ") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant'), is made with
reference to the following:
RECITALS:
A. On November 26, 2001, CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as "AGREEMENT ", for
Construction Inspection services.
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to September 30, 2002.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as "AMENDMENT NO. I", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTANT shall be compensated for services performed
pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated November 26,
2001, attached hereto.
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2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 1 shall not exceed forty -five thousand
and 00/100 Dollars ($45,000.00).
2002.
3. The term of the AGREEMENT shall be extended to September 30,
4. Except as expressly modified herein, all other provisions, terms,
and covenants set forth in AGREEMENT shall remain unchanged and shall be in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO. 1 on the date first above written.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
BV:
LaVonne Harkless
City Clerk
CITY OF NEWPORT BEACH,
A municipal corporation
Mayor
City of Newport &6ach
Pro Source, Inc.
BYE
{AL- T T T CiJLY
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. EXHIBIT A
Pro Source-
Pro Source, Inc.
Suite 200
Santa An E. Dyer Road
PRO SOURCE, INC
Santa Ana, CA 92705
BASIC AGREEMENT Voice 714 - 7554100
Fax: 714- 755 -4104
City of Newport Beach
In accordance with your instructions, we are assigniryg our employee, Nicholas Godinez to your
Project nn die capacity of Public Works Inspector beginning on, Monday, November 5, 2001.
Confimhing our verbal quotation, die Billing Rare for these services will be as follows.
Straight time: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
Tlhe following terns will govern Buis assignment:
1. Billings will be rendered weekly based upon time slips, which Pro Source, Inc.
will provide to our employee dial must be signed by your representative each
week. Tema are payable Net 30 days.
2. "11his agreement is made with the understanding that City of Newport Beach
will not be allowed to employ Nicholas Godinez a pernhanent basis without
die pennission of Pro Source, Inc. at any time during or at die end of the
contract for at least a frmondh period.
3. You acknowledge and contirn that our employee is working at your facility
solely under your direction and supervision.
We request that you sign and return a copy of this cons mhation to Pro Source, Inc. Than you
for die opportunity to service your company.
Pro Source Representative:
Resource Specialist
Pro Source, Inc
1221 1- Dyer Road, Suite 200
Santa Ana, CA 92705
Company: City of Newport Beach
Authorized Signature air(] Tide
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
n.
FEB 2 6 2002
i Iii i
TO: Mayor and Members of the City Council
FROM: Public Works Department
February 26, 2002
CITY COUNCIL AGENDA
ITEM NO. 4
SUBJECT: APPROVAL OF AMENDMENT NO. 1 TO THE PROFESSIONAL
SERVICES AGREEMENT FOR CONSTRUCTION SUPPORT SERVICES
WITH PRO SOURCE, INC.
RECOMMENDATION:
Approve Amendment No. 1 to the Professional Services Agreement for construction
services with Pro Source, Inc.
DISCUSSION:
On November 13, 2001, the Council authorized a budget amendment appropriating
$150,000 for contract inspection services. Public Works inspection staff needed to be
increased by two contract inspectors as soon as possible to be able to provide necessary
inspections for current and future construction projects, as well as Encroachment Permit
inspections. The first inspector was retained via that Council approval and is being used
on the Ocean Pier Rehabilitation project.
The second inspector was retained using an informal contract that did not require Council
approval. This inspector has many years of municipal inspection experience and has
adjusted well to inspecting Newport Beach projects. The current and upcoming
inspection workload for CIP construction projects will require continued additional
inspection staff. The original contract amount for inspection services is approaching the
threshold amount that requires Council approval and we are therefore bringing the
amendment to the agreement to Council for approval.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, this contract
inspector will be assigned various construction projects with the following general scope
of work:
1. Inspect construction work for assigned projects on a daily basis. Ensure work
done is per contract specifications and plan drawings.
SUBJECT: Approval of Amendment No. 1 to the Professional Services Agreement for Construction Support Services with Pro
Source, Inc.
February 26, 2002
Page 2
2. Coordinate the Contractor's work with residents, businesses, other City
Departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with Contractor's Superintendent to submit to
Construction Engineer for monthly progress payments.
4. Inform Construction Engineer of potential project changes. Obtain Contractor cost
estimates for suggested changes and for approval by Construction Engineer.
5. Perform final inspections and prepare punch lists.
6. Perform miscellaneous tasks as may be requested by City Staff.
Council approved the expenditure for this contract inspection on November 13, 2001. Per
that approval, the expenditure was initially being authorized in the General Fund as an
operating expenditure. At year -end these expenditures will be allocated back to the
specific CIP's utilizing the inspection services. The General Fund will be reimbursed if the
inspection services were utilized for CIP's funded by sources other than the General
Fund.
Respectfully subrrtitted,
PUBL DEPARTMENT
Steve Badum, Director
By: le
R. Gunther, P.E.
Construction Engineer
Attachments: Amendment No. 1
Agreement
Council Memo, November 13, 2001
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AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH PRO SOURCE
THIS AMENDMENT
NO. 1 TO
PROFESSIONAL
SERVICES
AGREEMENT, entered into this
day of
, 2002,
by and
between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter
referred to as "CITY ") and PRO SOURCE, whose address is 1221 E. Dyer Road, Suite
200, Santa Ana, California, 92705, (hereinafter referred to as "Consultant'), is made with
reference to the following:
RECITALS:
A. On November 26. 2001. CITY and CONSULTANT entered into a
Professional Services Agreement, hereinafter referred to as "AGREEMENT', for
Construction Inspection services.
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect
additional services not included in the AGREEMENT and to extend the term of the
AGREEMENT to September 30, 2002.
C. CITY desires to compensate CONSULTANT for additional
professional services needed.
D. CITY and CONSULTANT mutually desire to amend AGREEMENT,
hereinafter referred to as "AMENDMENT NO. 1 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. CONSULTANT shall be compensated for services performed
pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated November 26,
2001, attached hereto.
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2. Total additional compensation to CONSULTANT for services
performed pursuant to this AMENDMENT NO. 1 shall not exceed forty -five thousand
and 001100 Dollars ($45,000.00).
2002.
3. The term of the AGREEMENT shall be extended to September 30,
4. Except as expressly modified herein, all other provisions, terms,
and covenants set forth in AGREEMENT shall remain unchanged and shall be in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT
NO. 1 on the date first above written.
CITY OF NEWPORT BEACH,
A municipal corporation
3'11
APPROVED AS TO FORM: Mayor
City of Newport Beach
City Attorney
ATTEST:
By:
LaVonne Harkless
City Clerk
Pro Source. Inc.
371
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• • EXHIBIT A
PRO SOURCE., INC
BASIC AGREEMENT
City of Newport Beach
Pro Source-
Pro Source, Inc.
Suite 200
1221 E. Dyer Road
Santa Ana, CA 92705
Voice 714- 755-4100
Fax: 714- 755-4104
In accordance with your instructions, Nve are assigaing our employee, Nicholas Godinez to your
Project in the capacity of Public Works Inspector beguuung on, Monday, November 5, 2001.
Confi nni ng our verbal quotation, die Billutg Rate for these services % %ill be as follows.
Straight time: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
The following terns will govern this assigwment:
Billings will be rendered weekly based upon time slips, which no Source, lnc.
will provide to our employee that must be signed by your representative each
week. Terms are payable Net 30 days.
2. '17ris agreement is made with tie understanding dirt City of Newport Beach
will not be allowed to employ Nicholas Godinez a pemnanent basis ntidnout
the pen-nission of Pro Source, Inc. at any time during or at die end of lie
contract for at least a Gmo ndn period.
3. You acknowledge and confirm that our employee is working at your facility
solely wider your direction and supervision.
We request that you sign and return a copy of this confinnalion to Pro Source, Inc. "Thank you
for die opportwuty to service your company
Pro Source Representative:
Resource Specialist
no Source, Inc
12211, Dyer Road, Suite 200
Santa Ana, CA 92705
Company: City of Ne«I>ort Beach
Authorized Signature and "tide
City of Newport Beach
3300 Newport Boulevard
Nei %, tort Beach, CA 92663
0 0
PROFESSIONAL SERVICES AGREEMENT
FOR
CONSTRUCTION SUPPORT SERVICES
THIS AGREEMENT, entered into this cQ4 day of alJe1n Q r' , 2001, by and
between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as
"City "), and Pro Source, Inc., whose address is 1221 E. Dyer Road, Suite 200, Santa Ana,
CA 92705, (hereinafter referred to as "Consultant'), 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 Consultant to perform construction inspection services
upon the terms and conditions contained in this Agreement.
C. The principal member of Consultant for purpose of this Agreement is Scott
Ryan.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
contract with Consultant under the terms and conditions provided 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 the02(0 day of 7b Q leo zlo�
2001, and shall terminate on the 281h day of February 2002, unless terminated earlier as set
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forth herein.
2. SERVICES TO BE PERFORMED
E
Consultant shall provide Construction Inspection services. (Consultant Fact Sheet
attached as Exhibit "A ".) Upon verbal request from Services Administrator, Consultant shall
provide letter proposals for services requested by the City. The letter proposal shall include
the estimated cost and time to complete the services, including the estimated number of
hours and position for each person assigned to perform the services contained in the letter
proposal. No Services shall be provided until the City has provided written acceptance of the
letter proposal. Consultant shall diligently perform the duties in the approved letter proposals,
in accordance with the terms and conditions of this Agreement.
3. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of this
Section and the scheduled billing rates set forth in Appendix "B" to Exhibit "A" attached hereto
and incorporated herein by reference. No rate changes shall be made during the term of this
Agreement without prior written approval of City. Consultant's compensation for all services
performed in accordance with this Agreement shall not exceed the total contract price of
Twenty Nine Thousand Three Hundred Seventy Six Dollars ($29,376).
3.1 Consultant shall maintain accounting records of its billings which includes the
name of the employee, type of work performed, times and dates of all work which is billed on
an hourly basis, what task the work is for and all approved incidental expenses including
reproductions, computer printing, postage and mileage.
3.2 Consultant shall submit monthly progress invoices to City payable by City within
thirty (30) days of receipt of invoice.
3.3 Consultant shall not receive any compensation for extra work without prior
written authorization of City. Any authorized compensation shall be paid in accordance with
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the schedule of the billing rates as set forth in Exhibit "B".
3.4 City shall reimburse Consultant only for those costs or expenses, which have
been specifically approved in advance by City. Such cost shaft be limited and shall include
nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the services which
Consultant agrees to render pursuant to this Agreement which have been
approved in advance by City and in accordance with the terms and conditions of
this Agreement.
B. Approved computer data processing and reproduction charges.
C. Actual costs and /or other costs and/or payments specifically authorized in
advance in writing and incurred by Consultant in the performance of this
Agreement.
4. STANDARD OF CARE
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the services required by this Agreement and that it will perform
all services in a manner commensurate with the community professional standards. All
services shall be performed by qualified and experienced personnel who are not employed by
City nor have any contractual relationship with City. Consultant represents to City that it has
or shall obtain all licenses, permits, qualifications and approvals required of its profession.
Consultant further represents that it shall keep in effect all such licenses, permits and other
approvals during the term of this Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, failure of City to furnish timely information or to promptly
3
• •
approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or
governmental agencies, or any other delays beyond Consultant's control.
4.3 The term Construction Inspection does not imply that Consultant is engaged in
any aspect of the physical work of construction contracting. Consultant shall not have control
over or charge of, and shall not be responsible for Project's design, Project's contractor
(hereinafter referred to as "Contractor"), construction means, methods, techniques,
sequences or procedures, or for any health or safety precautions and programs in connection
the work. These duties are and shall remain the sole responsibility of the Contractor.
Consultant shall not be responsible for the Contractor's schedules or failure to carry out the
work in accordance with the contract documents. Consultant shall not have control over or
charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their
Agents or employees, or of any other persons performing portions of the work.
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
Consultant, except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute
Consultant or any of Consultant's employees or agents to be the agents or employees of City.
Consultant shall have the responsibility for and control over the details and means of
performing the work provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement which may appear to give City the right to direct
Consultant as to the details of the performance of the services or to exercise a measure of
control over Consultant shall mean that Consultant shall follow the desires of City only in the
results of the services.
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6. COOPERATION
0
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies, which may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with Consultant on Project.
7. PROJECT MANAGER
Consultant shall assign Agreement to a Services Manager, who shall coordinate all
aspects of this Agreement. This Services Manager shall be available to City at all reasonable
times during term of Project. Consultant has designated Scott Ryan to be its Services
Manager. Consultant shall not remove or reassign any personnel designated in this Section
or assign any new or replacement person to Project without the prior written consent of City.
City's approval shall not be unreasonably withheld with respect to removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from Project any of its personnel
assigned to the performance of services upon written request of City. Consultant warrants it
will continuously furnish the necessary personnel to complete Project on a timely basis as
contemplated by this Agreement.
8. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement and
Consultant shall perform the services in a timely manner. The failure by Consultant to strictly
perform in a timely manner may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due
to causes beyond Consultant's reasonable control. However, in the case of any such delay in
the services to be provided for Project, each party hereby agrees to provide notice to the
other parry so that all delays can be addressed.
8.1 Consultant shall submit all requests for extensions of time for performance in
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writing to the Project Administrator not later than ten (10) calendar days after the start of the
condition, which purportedly causes a delay, but not later than the date upon which
performance is due. The Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays, which are beyond Consultant's control.
8.2 For all time periods not specifically set forth herein, Consultant shall respond in
the most expedient and appropriate manner under the circumstances by telephone, fax, hand
delivery or mail.
9. CITY POLICY
Consultant shall discuss and review all matters relating to policy and project direction
with the Project Administrator in advance of all critical decision points in order to ensure that
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City Council.
11. PROGRESS
Consultant is responsible to keep the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of the
work, activities performed and planned, and any meetings that have been scheduled or are
desired.
12. HOLD HARMLESS
Consultant shall indemnify, defend, save and hold harmless City, its City Council,
boards and commissions, officers and employees from and against any and all loss,
damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property
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damages, or any other claims arising from any and all negligent acts or omissions of
Consultant, its employees, agents or subcontractors in the performance of services or work
conducted or performed pursuant to this Agreement, excepting only the active negligence or
willful misconduct of City, its officers or employees, and shall include attorneys' fees and all
other costs incurred in defending any such claim. 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.
13. INSURANCE
Without limiting consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain and provide and maintain at its own expense during the term of
this Agreement policy or policies of liability insurance of the type and amounts described
below and satisfactory to City. Certification of all required policies shall be signed by a person
authorized by that insurer to bind coverage on its behalf and must be filed with City prior to
exercising any right or performing any work pursuant to this Agreement. Except workers
compensation and errors and omissions, all insurance policies shall add City, its elected
officials, officers, agents, representatives and employees as additional insured for all liability
arising from Consultant's services as described herein.
Insurance policies with original endorsements indemnifying Project for the following
coverages shall be issued by companies admitted to do business in the State of California
and assigned Best's A- VII or better rating:
A. Worker's compensation insurance, which includes the "Waiver of Subrogration"
clause, covering all employees and principals of Consultant, per the laws of the
State of California.
B. Commercial general liability insurance, including the primary and non-
contributory wording, covering third party liability risks, including without
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limitation, contractual liability, in a minimum amount of $1 million combined
single limit per occurrence for bodily injury, personal injury and property
damage. If commercial general liability insurance or other form with a general
aggregate is used, either the general aggregate shall apply separately to this
Project, or the general aggregate limit shall be twice the occurrence limit.
C. Commercial auto liability and property insurance, including the primary and non-
contributory wording, covering any owned and rented vehicles of Consultant in a
minimum amount of $1 million combined single limit per accident for bodily
injury and property damage.
Said policy or policies shall be endorsed to state that coverage shall not be canceled
by either party, except after thirty (30) days prior notice has been given in writing to City.
Consultant shall give City prompt and timely notice of claim made or suit instituted arising out
of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be
necessary for its proper protection and prosecution of the work.
Consultant agrees that in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general and automotive liability insurance, which
Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on
behalf of any insurer providing workers compensation, comprehensive general, and
automotive liability insurance to either Consultant or City with respect to the services of
Consultant herein, a waiver of any right of subrogation, which any such insurer of said
Consultant may acquire against City by virtue of the payment of any loss under such
insurance.
14. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any
0
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of the services to be performed under this Agreement, directly or indirectly, by operation of
law or otherwise without prior written consent of City. Any attempt to do so without consent of
City shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or
syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. 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.
15. OWNERSHIP OF DOCUMENTS
Each and every report, draft, work product, map, record and other document
reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection
with this Agreement shall be the exclusive property of City.
Documents, including drawings and specifications, prepared by Consultant pursuant to
this Agreement are not intended or represented to be suitable for reuse by City or others on
any other project. Any use of completed documents for other projects and any use of
incomplete documents without specific written authorization from Consultant will be at City's
sole risk and without liability to Consultant. Further, any and all liability arising out of changes
made to Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived as against Consultant and City assumes full responsibility for such
changes unless City has given Consultant prior notice and has received from Consultant
written consent for such changes.
Consultant shall, at such time and in such forms as City may require, furnish reports
concerning the status of services required under this Agreement.
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Ll
16. CONFIDENTIALITY
0
The information, which results from the services in this Agreement, is to be kept
confidential unless City authorizes the release of information.
17. ADMINISTRATION
The Public Works Department will administer this Agreement. Robert Gunther shall be
considered the Services Administrator and shall have the authority to act for City under this
Agreement. The Services Administrator or his /her authorized representative shall represent
City in all matters pertaining to the services to be rendered pursuant to this Agreement.
18. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and accurate records
with respect to the costs incurred under this Agreement. All such records shall be clearly
identifiable. Consultant shall allow a representative of City during normal business hours to
examine, audit and make transcripts or copies of such records. Consultant shall allow
inspection of all work, data, documents, proceedings and activities related to the Agreement
for a period of three (3) years from the date of final payment under this Agreement.
19. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute with
respect to such payment. Such withholding shall not be deemed to constitute a failure to pay
according to the terms of this Agreement. Consultant shall not discontinue work for a period
of thirty (30) days from the date of withholding as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of seven percent (7 %) per annum from the date of withholding of any amounts found
to have been improperly withheld.
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20. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than would have resulted if
there were not errors or omissions in the work accomplished by Consultant, the additional
design, construction and /or a restoration expense shall be borne by Consultant. Nothing in
this paragraph is intended to limit City's rights under any other sections of this Agreement.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in connection with Agreement.
22. CONFLICTS OF INTEREST
A. Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose financial interest that may foreseeably be materially affected by the
work performed under this Agreement, and (2) prohibits such persons from
making, or participating in making, decisions that will foreseeably financially
affect such interest.
B. If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Consultant shall indemnify and hold harmless City for
any and all claims for damages resulting from Consultant's violation of this
Section.
23. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior
written approval of City.
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24. NOTICES
0
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
third business day after the deposit thereof in the United States mail, postage prepaid, first
class mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Consultant to City shall be addressed
to City at:
Robert Gunther, P.E.
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA, 92658 -8915
(949) 644 -3311
Fax (949) 644 -3318
All notices, demands, requests or approvals from City to Consultant shall be addressed
to Consultant at:
Attention: Scott Ryan
Pro Source, Inc.
1221 E. Dyer Road
Suite 200
Santa Ana, CA 92705
714 - 755 -4100
Fax: 714 - 755 -4104
25. TERMINATION
In the event either part hereto fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, 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) days, or
if more than two (2) days are reasonably required to cure the default and the defaulting parry
fails to give adequate assurance of due performance within two (2) days after receipt by
defaulting party from the other party of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, the nondefaulting party may terminate
12"
the Agreement forthwith by giving to the defaulting party written notice thereof.
25.1 City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein.
Upon termination of this Agreement, City shall pay to Consultant that portion of
compensation specified in this Agreement that is earned and unpaid prior to the effective date
of termination.
26. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
27. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any other
term. covenant or condition contained herein whether of the same or a different character.
28. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions hereon. Any modification of this Agreement will be effective
only by written execution signed by both City and Consultant.
29. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of City. Since
Consultant has no control over the cost of labor and material, or over competitive bidding or
market conditions, Consultant does not guarantee the accuracy of such opinions as
compared to contractor bids or actual cost to City.
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30. PATENT INDEMNITY
Consultant shall indemnify City, its agents, officers, representatives and employees
against liability, including costs, for infringement of any United States' letters patent,
trademark, or copyright infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By: rd�%4��
City Attorney
fAusers\pbw\share"greements \fy 01- 02Wrosource.doc
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CITY OF NEWPORT BEACH
A Municipal Corpgration
S}ephen G. Badum
ublic Works Director
Pro Source, Inc.
By:
0 0
PRO SOURCE, INC
BASIC AGREEMENT
City of Newport Beach
Pro Source-
Pro Source, Inc.
Suite 200
1221 E. Dyer Road
Santa Ana, CA 92705
Voice 714-755-4 1 00
Fox : 714- 755 -4104
In accordance with)-our instructions, we are assigning our employee, Nicholas Godinez to your
Project in die capacity of Public Works Inspector beginning on, Monday, November 5, 2001.
Confirhuhg our verbal quotation, die Billing Rate for these services will be as follows.
Straight time: $ 51.00 per hour
Overtime Rate: $ 76.50 per hour
The following tennis will govern this assignment
1. Billings will be rendered weekly based upon time slips, hvluch Pro Source, Inc.
will provide to our ernployce that must be signed by your representative each
week. Temis are payable Net 30 days.
2. This agreement is made with the understanding that City of Newport Beach
will not be allowed to employ Nicholas Godincz a permanent basis without
die permission of Pro Sour-cc, Inc. at any time during or at die end of die
contract for at least a 6- nhonth period.
3. You acknowledge and confine that our employee is working at your facility
solely under your direction and supervision.
We request that you sign and return a copy of this confirmation to Pro Source, Inc. Thank you
for die oppomn City to service your conhparhy.
Pro Source Representative:
Resource Specialist
Pro Source, Inc
12211- Dyer Road, Suite 200
Santa Ana, CA 92705
Conhpany: City of Newport Beach
Authorized Signature and Aide
City of Newport Beach
33(X) Newport Boulevard
Newport Beach, CA 92663
0
TO: Mayor and Members of the City Council
FROM: Public Works Department
November 13, 2001
CITY COUNCIL AGENDA
ITEM NO. 8
SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT FOR
PUBLIC WORKS INSPECTION SERVICES
RECOMMENDATIONS:
1. Approve a Professional Services Agreement for Inspection Services with Quantum
Consulting for $75,000. Authorize the Mayor and the City Clerk to execute the
Agreement.
2. Authorize a Budget Amendment appropriating $150,000 to 5100 -8080 (Services —
Professional & Technical) from General Fund unappropriated surplus fund balance.
DISCUSSION:
Currently the inspection demands on the City's three full -time inspectors far exceeds their
capacity. There are approximately 16 projects in various stages of construction at this
time and an additional 5 projects scheduled to be awarded before January 1, 2002. From
January 1, 2002 through July 1, 2002 Staff anticipates the award of an additional 20
construction projects. Our inspection staff needs to be increased by two contract
inspectors as soon as possible to be able to provide necessary inspections for current
and future construction projects as well as Encroachment Permit inspections.
The first inspector is needed to provide inspection of the Newport and Balboa Piers
Rehabilitation Project. The Quantum Consulting proposal in the amount of $75,000 offers
the services of an inspector with over 35 years of Public Works experience and ocean -
related project experience with the City of Los Angeles Ports and Harbors Department.
The second inspector is needed to inspect various CIP construction projects scheduled to
begin shortly. Staff is communicating with several other firms to find this inspector. It is
anticipated an additional $75,000 will be needed for these services and another
Agreement will be brought to Council for consideration at a future meeting.
SCOPE OF SERVICES:
Acting under the direction of the Public Works Construction Engineer, the contract
inspectors will be assigned to the Pier Rehabilitation and various other construction
projects with the following general scope of work:
SU'3JEC7: Approvaf of ProfessionaWices Agreement for Public Works Inspection. So'*
D ?te: Novemher 13, 2001
Page 2
1. Inspet:t construction work for assigned projects on a daily basis. Insure work done
is per contract specifications and plan drawings.
2. Coordinate the Contractor's work with residents, businesses, other City
Departments, and utility companies on a regular basis.
3. Prepare item quantity estimates with Contractor's Superintendent to submit to
Construction Engineer for monthly progress payments.
4. Inform Construction Engineer of potential project changes. Obtain Contractor cost
estimates for suggested changes and for approval by Construction Engineer.
5. Perform final inspections and prepare punch lists
6. Perform miscellaneous tasks as may be requested by City Staff.
Staff is requesting Council to authorize a total of $150,000 to the Public
Works /Engineering Operations budget to facilitate the payment of these services
throughout the fiscal year. Although this expenditure is initially being authorized in the
General Fund as an operating expenditure, at year -end, these expenditures will be
allocated back to the specific CIP's the inspection services were utilized for. The
General Fund will be reimbursed if the inspection services were utilized for CIP's
funded by sources other than the General Fund.
Respectfully
- PUBLIC-'WORKS DEPARTMENT
Step' 16n G. Badum, Director
R. Gunther, P.E.
Construction Engineer
Attachment: Agreement