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HomeMy WebLinkAboutC-4013 - PSA for Root Foaming 112,000 LF of Sewer LineAMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ON-CALL SEWER LINE ROOT CONTROL SERVICES THIS AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT, is entered into as of this 'V" day of December, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("CITY"), and DUKE'S ROOT CONTROL, INC., a New York Corporation whose address is 1020 Hiawatha Blvd. West, Syracuse, New York, 13204-1131 ("CONTRACTOR"), and is made with reference to the following: RECITALS: A. On March 15, 2007, CITY and CONTRACTOR entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT", for on-call sewer line root control services. B. CITY and CONTRACTOR have entered into 2 separate AMENDMENTS of the AGREEMENT, the latest dated January 30, 2009. C. CITY desires to enter into this AMENDMENT NO.3 to extend the term of the AGREEMENT to December 31, 2011. D. CITY and CONTRACTOR mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 3", as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of the AGREEMENT shall be extended to December 31, 2011. 2. COMPENSATION City shall pay Contractor for the services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and shall be based on the attached Schedule of Billing Rates (Exhibit A). 3. SERVICES TO BE PERFORMED Contractor shall perform sewer line root control services pursuant to this Amendment No. 3 and according to the Request to Extend On -Call Professional Services Agreement dated December 2, 2009, attached hereto as (Exhibit B). 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 3 on the date first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: enet D. Be hamp, ant City Adorney ATTEST: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation B eo Mu doch, Utilities Director CONTRACTOR: DUKES ROOT CONTROL, INC. By: "_� '4� (Corp to Officer) Title: President Print Name: Michael S. Hogan By: (Financial Office Title: Secretary Print Name: Constance Wozniak Attachments: Exhibit A — Schedule of Billing Rates Exhibit B — Request to Extend On -Call Services Agreement Am DUKE'S ROOT CONTROL, INC. The Full -Service Root Control Experts December 2, 2009 Ms. Cindy Asher Utilities Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658-8915 RE: Sewer Line Chemical Root Control, Contract Renewal Dear Ms. Asher, 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 1 -800 -44 -ROOTS (315)472-4781 FAX (315) 475-4203 Duke's Root Control, Inc. is requesting to extend the Professional Services Agreement for an additional two years to commence on January 1, 2010. New rate sheets are attached. ours truly. :1 Tom Edwards SYRACUSE b DALLAS • ATLANTA - COLUMBUS , CHICAGO OAKLAND • PORTLAND • DENVER DUKE"S ROOT CONTROL, INC. The Full -Service Root Control Experts EXHIBIT "A" BILLING RATES Pipe Size Price per Foot 6 inch $0.84/foot 8 inch $0.84/foot 10 inch $0.84/foot These rates will remain in place until December 31, 2011. 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 1 -800 -44 -ROOTS (315) 472-4781 FAX (315) 475-4203 SYRACUSE . DALLAS ATLANTA, COLUMBUS • CHICAGO OAKLAND PORTLAND • DENVER C-<<6(3 AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ON-CALL SEWER LINE ROOT CONTROL SERVICES THIS AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT, entered into this 30th day of January, 2009, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City") and DUKE'S ROOT CONTROL, INC., a New York corporation whose address is 1020 Hiawatha Blvd., West, Syracuse, New York 13204-1131 ("Contractor"), and is made with reference to the following: RECITALS A. On March 15th, 2007, CITY and CONTRACTOR entered into an On -Call Professional Services Agreement, hereinafter referred to as "Agreement", for Sewer Line Root Control Services. This Agreement is scheduled to expire on December 31St, 2007. B. On December 27, 2007 City and Contractor entered into Amendment No. 1 to extend the term of the Agreement to December 31St, 2008. C. City desires to enter into this Amendment No. 2 to extend the term of the Agreement to December 31St, 2009. C. City and Contractor mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 2", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Contractor shall perform sewer line root control services in various locations throughout the City pursuant to this Amendment No. 2 and according to the Request to Extend On -Call Services Agreement dated January 19, 2009, attached hereto as Exhibit A. 2. Compensation to the Contractor for services performed pursuant to this Amendment No. 1 for all work performed from January 1, 2009, to December 31, 2009, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to December 31, 2009. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: By:� �-- Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By: OWE PY� Leilani Brown, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By - Coe rMyl rdoc , Utilities Director for the City of Newport Beach DUKE'S ROOT CONTROL, INC. By: Title: President Print Name: Mic6_e( S. Hvy-L By: (Financial Office ) Title: 5ecreA-o�cti Print Name: `OnS'lb&ACC Attachment: Exhibit A - Request to Extend On -Call Services Agreement Exhibit B - Schedule of Billing Rates DUKE ROOT CONTROL,�S The Full -Service Root Control Experts January 19, 2009 Ms. Cindy Asher Administrative Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 RE: Professional Services Agreement Duke's Sewer Line Chemical Root Control Service Dear Ms. Asher: 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 1 -800 -44 -ROOTS (315) 472-4781 FAX (315) 475-4203 Duke's Root Control, Inc. is requesting to extend the Professional Services Agreement for another year to commence on January 1, 2009, and expire on December 31, 2009. The new rate sheet is attached. Please feel free and do not hesitate to contact our office at 1-800-447-6687 if you have any questions or need additional information. YQurs truly, �i Tom Edwards Enclosure SYRACUSE - DALLAS - ATLANTA - COLUMBUS • CHICAGO OAKLAND • PORTLAND • DENVER 9ft DUKES ROOT CONTROL, INC. The Full -Service Root Control Experts January 19, 2009 Mr. Mike Lynch Wastewater Supervisor City of Newport Beach 3300 Newport Blvd./Box 1768 Newport Beach, CA 92658-8915 Dear Mr. Lynch: EXHIBIT "B" 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 1 -800 -44 -ROOTS (315)472-4781 FAX (315) 475-4203 Thank you for expressing interest in Duke's foaming root control service. As per your request for quotation, Duke's Root Control, Inc. will treat any sewers for the unit prices listed below: Pipe Size Price per Foot 6 inch $0.79/foot 8 inch $0.79/foot 10 inch $0.79/foot 12 inch $1.39/foot 15 inch $1.39/foot Prices are computed per linear foot, manhole to manhole, and are good through December 31, 2009. A $2,000.00 minimum is required, and Duke's standard guarantee applies to all sanitary sewers treated. Prices for pipes larger than 15 inch are determined on a case-by-case basis. If you require any further information, please call 1-800-447-6687. Thank you for your interest in our service. SIcerely, Thomas Edwards SYRACUSE - DALLAS ATLANTA , COLUMBUS • CHICAGO OAKLAND PORTLAND • DENVER • • C--40 PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ROOT FOAMING 112,000 LF OF SEWER LINE THIS SERVICE AGREEMENT is made and entered into as of this 8T" day of January, 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and DUKE'S ROOT CONTROL, INC. a New York Corporation whose address is 1020 Hiawatha Blvd., West, Syracuse, New York, 132041131 ( "Contractor "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to root foam 112,000 LF of sewer line in various locations throughout the City. C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal member of Contractor for purposes of Project shall be Tom Edwards. E. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows SERVICES TO BE PERFORMED Contractor shall perform the Project and all the services for the Project in the manner described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference. As a material inducement to the City entering this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 0 0 2. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Contractor to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 2.1 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 2.2 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 3. COMPENSATION TO CONTRACTOR As full compensation for the performance and completion of the Project as required, City shall pay to Contractor and Contractor accepts as full payment the sum of Seventy-six Thousand, One - Hundred and Sixty ($76,160.00). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. All amounts due and owing under this Agreement shall be paid no later than thirty (30) days after the Project work has been completed and an invoice for the Project work has been approved by City staff. 4. TYPE OF MATERIALS /STANDARD OF CARE 4.1 Contractor shall use only the standard supplies and materials described in Exhibit A in performing Contract Services. Any deviation from the materials described in Exhibit A shall not be installed unless approved in advance by the City Administrator. 4.2 All of the services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the services required by this Contract. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 4.3 At its sole cost, the Contractor shall provide all necessary machines, equipment, tools and labor, etc., as may be necessary to perform the work outlined herein and in the attached Scope of Services. Equipment used by the Contractor must be of commercial quality and in good and safe working condition at all times. 4.4 Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services 2 0 0 required by this Agreement. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 5. SECURITY/ TOOLS AND EQUIPMENT The City shall not be responsible for losses of Contractor's supplies, tools, or equipment. As such, Contractor acknowledges its responsibility for providing proper identification and security for such items at its own expense. 6. ADMINISTRATION This Agreement will be administered by the Utilities Department. Ed Burt shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the services required hereunder, or for damage to property from any cause arising from the performance of the Project by Contractor, or its subcontractors, or its workers, or anyone employed by either of them. 7.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 7.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) 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 damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Contract; (2) use of improper materials in performing this Project; including, without limitation, defects in workmanship or materials and /or design defects or (3) any and all claims asserted by Contractor's subcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. However, nothing herein shall require Contractor to indemnify City from the sole negligence or willful misconduct of City, its officers or employees. 7.4 Contractor shall perform all Project work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Project work. 7.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract as shall be considered necessary by City may be retained K by it until disposition has been made of such suits or claims for damages as aforesaid. 7.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the items of this Contract, except to the extent provided in Section 7.3 above. 7.7 The rights and obligations set forth in this Section shall survive the termination of this contract. 8. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Contract. No civil service status or other right of employment shall accrue to Contractor or its employees. 9. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Contractor on the Project. 10. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Labor and Materials Payment Bond in a form acceptable to the City Attorney. The Labor and Materials Payment Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. Contractor shall deliver, concurrently with execution of this Agreement, the Labor and Materials Payment Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the Sate of California. 11. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of work. Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. 0 0 0 B. Signa ture. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any 5 0 0 insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. 12. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the reputation, experience and competence of Contractor. Assignments of any or all rights, duties or obligations of the Contractor under this Agreement will be permitted only with the express written consent of City. Contractor shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 13. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 14. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this M 0 0 Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3011 Fax: 949 - 646 -5204 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Tom Edwards Duke's Root Control, Inc. 1020 Hiawatha Blvd., West Syracuse, NY 13204-1131 Phone: (315) 472 -4781 Fax: (315) 475 -4203 16. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. 17. STANDARD TERMS 17.1 Contractor shall at its own cost and expense comply with all statues, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 7 F- 17.2 A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver or any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 17.3 This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 17.4 In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments hereto, the terms of this Agreement shall govern. 17.5 This Agreement may be modified or amended only by written document executed by both Contractor and City and approved as to form by the City Attorney. 17.6 If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 17.7 The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. F? IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: A - C, Aaron Harp Assistant City Attorney for the City of Newport Beach ATTEST: JA&a- By: G l fj LaV n ar I ss, City Clerk WPORT k O cn� C'4Ll F©Pfa� " CITY 0/ EWPpRT C , A Munic'p I Jr, rati n 44_ By:� E ward D. lic Mayor for the City of Newport Beach DUKE'S ROOT CONTROL, INC.: By: /' /' &� (Corporate Officer) Title: VIC'L-P«S id'e/V+ Print NameX 1 iCe,,v, . A4ak, By: Y (Financial Officer) Title: -7-r,eczure-r- Print Name: 0"nCe LUQ A,' Attachments: Exhibit A - Scope of Services 9 11fO8J2007 16:56 FAX 315 4753 ROOT CONTROL„ INC. The FullSenAce Root Control Experts November 8, 2007 Mr_ Ed Burt Superintendent City of Newport Beach P.O, Box 1768 Newport Beach, CA 92-658 -8915 Dear Mr. Brut: Duke's Root concroi. zuv EXHIBR nAn 1020 Hiawatha Blvd., West Syracuse, NY 13204 -1131 1- 800 -44 -ROOTS (315) 472 -4781 Fax: (315) 475 -4203 As per your request for quotation for foaming root control service, we submit the following: Dukes Root Control, Inc. will treat any sewers requested for the unit prices listed below. Prices are computed per linear foot, manhole to manhole, and a $2,000.00 minimum is required. Duke's standard guarantee applies to all sanitary sewers treated. If you require any fiuther information, please call 1- 800 - 447 -6687. Thank you for your interest in our service. Sincerely, Tom Edwards SYRACUSE - DALLAS • ATLANTA • COLUMBUS • CHICAGO OAKLAND • PORTLAND • DENVER Pipe Size Price Quaffft Total 6 inch $0.68moot N/A N/A 8 inch .68ftoot NIA NIA 10 inch $0.68/foot NIA NIA 72 inch $0.6moot N/A WA Total Cost &12 inch $0.66lfoot 11 000 feet $7 160.00 Prices are computed per linear foot, manhole to manhole, and a $2,000.00 minimum is required. Duke's standard guarantee applies to all sanitary sewers treated. If you require any fiuther information, please call 1- 800 - 447 -6687. Thank you for your interest in our service. Sincerely, Tom Edwards SYRACUSE - DALLAS • ATLANTA • COLUMBUS • CHICAGO OAKLAND • PORTLAND • DENVER 0 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 13 January 8, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Utilities Department Steve Myrter, Utilities Director 949 - 644 -3011 or smvrter(a)citv.newport- beach.ca.us SUBJECT: APPROVAL OF PROFESSIONAL SERVICE AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ROOT CONTROL SERVICES OF 112,000 LF OF SEWER LINE RECOMMENDATION: Approve a Professional Services Agreement with Duke's Root Control, Inc. for root foaming of 112,000 linear feet of sewer line at various locations throughout the City for a not -to -exceed price of $76,160.00. Authorize the Mayor and the City Clerk to execute the Agreement. DISCUSSION: Background: Intrusion of roots into wastewater pipelines is probably the most destructive problem encountered in the operation of a wastewater collection system. If not managed, root intrusion can lead to accidental wastewater stoppages and overflows. Each year staff solicits proposals from firms specializing in providing root cleaning services with the goal of removing roots from portions of the system more susceptible to this type of overflow concern. Staff uses the following information to more effectively identify areas to concentrate root cleaning efforts: • Maintenance Histories — maintenance records will show which sewer lines have experienced stoppages and the causes of these. • Sewer Line Video Reports — the video tapes provide documentation of root problems and help staff make assessments of the extent of infiltration. • Sewer Stoppages and Overflows — due to structural damage that has occurred. • Professional Services Agreemenflith Duke's Root Control, Inc. For Sewer Line Root Control Services of 112, 000 If of Sewer Line January 8, 2008 Page 2 Staff solicited proposals to root foam 112,000 If. of sewer line and as a result received proposals from two firms performing this type of work. After reviewing the experience, qualifications, and process to perform this type of work, staff selected Duke's Root Control, Inc. Environmental Review: This project does not require environmental review. Funding Availability: There are sufficient funds available in the Wastewater budget account to cover the cost of the root foaming. Account Description Sewer Manhole Lining Prepared by: CindyAshei, dministrative Manager Attachments: Agreement Account Number Amount 5600 -8189 $76,160 Submitted by: Steve Myrter, Utilitie Director 0 PROFESSIONAL SERVICES AGREEMENT WITH DUKE'S ROOT CONTROL, INC. FOR ROOT FOAMING 112,000 LF OF SEWER LINE THIS SERVICE AGREEMENT is made and entered into as of this 8"' day of January, 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and DUKE'S ROOT CONTROL, INC. a New York Corporation whose address is 1020 Hiawatha Blvd., West, Syracuse, New York, 132041131 ( "Contractor"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to root foam 112,000 LF of sewer line in various locations throughout the City. C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal member of Contractor for purposes of Project shall be Tom Edwards. E. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Contractor shall perform the Project and all the services for the Project in the manner described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference. As a material inducement to the City entering this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Contractor shall perform everything required to be performed, and shall provide and fumish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 2. TIME OF PERFORMANCE 0 0 2. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Contractor to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 2.1 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 2.2 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 3. COMPENSATION TO CONTRACTOR As full compensation for the performance and completion of the Project as required, City shall pay to Contractor and Contractor accepts as full payment the sum of Seventy -six Thousand, One - Hundred and Sixty ($76,160.00). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. All amounts due and owing under this Agreement shall be paid no later than thirty (30) days after the Project work has been completed and an invoice for the Project work has been approved by City staff. 4. TYPE OF MATERIALS /STANDARD OF CARE 4.1 Contractor shall use only the standard supplies and materials described in Exhibit A in performing Contract Services. Any deviation from the materials described in Exhibit A shall not be installed unless approved in advance by the City Administrator. 4.2 All of the services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the services required by this Contract. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 4.3 At its sole cost, the Contractor shall provide all necessary machines, equipment, tools and labor, etc., as may be necessary to perform the work outlined herein and in the attached Scope of Services. Equipment used by the Contractor must be of commercial quality and in good and safe working condition at all times. 4.4 Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services 2 0 0 required by this Agreement. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 5. SECURITY/ TOOLS AND EQUIPMENT The City shall not be responsible for losses of Contractor's supplies, tools, or equipment. As such, Contractor acknowledges its responsibility for providing proper identification and security for such items at its own expense. 6. ADMINISTRATION This Agreement will be administered by the Utilities Department. Ed Burt shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the services required hereunder, or for damage to property from any cause arising from the performance of the Project by Contractor, or its subcontractors, or its workers, or anyone employed by either of them. 7.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 7.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) 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 damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Contract; (2) use of improper materials in performing this Project; including, without limitation, defects in workmanship or materials and /or design defects or (3) any and all claims asserted by Contractor's subcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. However, nothing herein shall require Contractor to indemnify City from the sole negligence or willful misconduct of City, its officers or employees. 7.4 Contractor shall perform all Project work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Project work. 7.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract as shall be considered necessary by City may be retained 3 A 9. 10. 11 by it until disposition has been made of such suits or claims for damages as aforesaid. 7.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the items of this Contract, except to the extent provided in Section 7.3 above. 7.7 The rights and obligations set forth in this Section shall survive the termination of this contract. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Contract. No civil service status or other right of employment shall accrue to Contractor or its employees. COOPERATION Contractor agrees to work closely and cooperate fully with Citys designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Contractor on the Project. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Labor and Materials Payment Bond in a form acceptable to the City Attorney. The Labor and Materials Payment Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. Contractor shall deliver, concurrently with execution of this Agreement, the Labor and Materials Payment Bond, a certified copy of the "Certificate of Authority' of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the Sate of California. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of work. Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. 4 0 0 B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non- owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any 5 9 0 insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Agreement. 12. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the reputation, experience and competence of Contractor. Assignments of any or all rights, duties or obligations of the Contractor under this Agreement will be permitted only with the express written consent of City. Contractor shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 13. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Contractor shall not discontinue work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 14. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this I 0 0 Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3011 Fax: 949 -646 -5204 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Tom Edwards Duke's Root Control, Inc. 1020 Hiawatha Blvd., West Syracuse, NY 132041131 Phone: (315) 472 -4781 Fax: (315) 475 -4203 16. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. 17. STANDARD TERMS 17.1 Contractor shall at its own cost and expense comply with all statues, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 7 0 0 17.2 A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver or any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 17.3 This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 17.4 In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments hereto, the terms of this Agreement shall govem. 17.5 This Agreement may be modified or amended only by written document executed by both Contractor and City and approved as to form by the City Attorney. 17.6 If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 17.7 The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: A c, Aaron Harp Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Ln Edward D. Selich Mayor for the City of Newport Beach DUKE'S ROOT CONTROL, INC.: (Corporate Officer) Print Name: By: (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services 6 11/08/2007 16:56 FAX 315 47509 AIIP ir our s ROOT CONTROL, INC. The FUII Service Root Control Experts November 8, 2007 Mr- Ed Burt Superintendent City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Dear Mr. Burt: Duke's Root Control. it �w+renPR 0001/002 . 1020 Hiawatha BWd., West Syracuse, NY 13204.1131 1- 800-44 -ROOTS {315) 472 -4781 l=ax: (315) 4754203 As per your request for quotation for following: foaming root control service, we submit the Duke's Root Control, lnc. will treat any sewers requested for the unit prices listed below. Prices are computed per linear foot, manhole to manhole, and a $2,OW.00 minimum is required. Duke's standard guarantee applies to all sanitary sewers treated. If you require any further. infomlation, please call 1400 -417 -6687. Thank you for your interest in our service_ Sincerely, Tom Edwards SYRACUSE - DALLAS - ATLANTA - COLUMBUS - CHICAGO OAKLAND • PORTLAND -DENVER