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HomeMy WebLinkAboutC-4186 - MA for Root Foaming 26,133 LF of Sewer LineMAINTENANCE AGREEMENT WITH PACIFIC SEWER MAINTENANCE CORPORATION FOR ROOT FOAMING 26,133 LF OF SEWER LINE U THIS AGREEMENT is made and entered into as of this 0day of April, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and PACIFIC SEWER MAINTENANCE CORPORATION, a California Corporation whose address is 8244 W. Hillsdale Ct. Ste. 3, Visalia, California, 93291 ( "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 sewer line maintenance to alleviate sewer line root intrusion. C. City desires to engage Contractor to root foam 26,133 LF of 8" sewer line with the application of Sanafoam Vapor000ter II Root Control ( "Project "). D. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Contractor for purposes of Project, shall be Scott Gayman. F. 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: TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of June, 2009, unless terminated earlier as set forth herein. 2. 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 3. 4. 6. 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. 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. 3.1 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. 3.2 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. COMPENSATION 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 Twenty-three Thousand, Five Hundred and Nineteen Dollars and 701100 ($23,519.70). Contractor shall no 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 completed and an invoice for the Project work has been approved by City staff. 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. TYPE OF MATERIALS /STANDARD OF CARE 6.1 Contractor shall use only the standard supplies Exhibit A in performing Contract Services. Any described in Exhibit A shall not be installed unless City Administrator. 2 and materials described in deviation from the materials approved in advance by the 7. 6.2 All of the services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 6.3 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. 6.4 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 required by this Agreement. Contractor shall maintain a City of Newport Beach business license during the term of 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 Agreement; (2) use of improper materials in performing this Project including, without limitation, defects in workmanship or materials and /or design defects; and/or (3) any and all claims asserted by Contractor's subcontractors or suppliers on the Project, and shall include reasonable attorney's 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 E 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 Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 7.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the terms of this Agreement, except to the extent provided in Section 6.3 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 express terms of this Agreement. 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. INSURANCE Without limiting Contractor's indemnification of City, and Drior 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. Cerfificates 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. B. ftnature. 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. Coveraoe Requirements. 0 E. 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. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) 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 Coveraoe. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant 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. 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 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. 5 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. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 11. 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. 12. 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. 13. 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 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. 14. 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 R 15. 16. 17. 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: Ed Burt 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 Contractor shall be addressed to Contractor at: Attention: Scott Gayman Pacific Sewer Maintenance P.O. Box 229 Visalia, CA 93279 Phone: (800) 292 -9927 Fax: (559) 651 -3052 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. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Agreement. COMPLIANCE WITH ALL LAWS Contractor shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. WAIVER A waiver by City of any term, covenant or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 7 18. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 19. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services, the terms of this Agreement shall govern. 20. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 21. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 22. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 23. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 24. WARRANTY Contractor agrees that the application of Razorooter® II applied pursuant to this Agreement shall be covered by a three (3) year wear warranty as outlined in the Warranty Information, attached hereto as Exhibit B and incorporated in full by this reference. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By:_7 ynette Beaupha� p Assistant City, ttorney ATTEST: By: Vwfl�lv Leilani Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: �eor Murdoch Utilities Director PACIFIC SEWER MAINTENANCE: By: orporate Officer) 11 Title: P2 - �£ Print Name: hiAR- ERNE By: (Financial Officer) Title: S&(Zff aa� 4 N -r) Lkf F FWA►5c i 4L'FFtef22 Print Name: Co rC �I w�AN Attachments: Exhibit A — Scope of Services Billing Rate Exhibit B — Warranty Information 9 Hello Mike, EXHIBIT "A" PSMPACIFIC S9WER MAINTENANCE P.O. BOX 229 VISAUA, CA 93279 (800) 292 -9927 FAX (SS9) 6S1 -3052 Per our telephone conversation the following quote for Sewer Root Control Services is good through June 30, 2009 26,133 feet of 8 inch diameter pipe at $.90 per linear foot With a total cost not to exceed $23519.70 This quote is for all costs involved in the application of Sanafoam Vaporooter Il Root Control. We are a professional Root Control service with more than 30 years in business and have a history of work with the City of Newport Beach as well as surrounding Cities and Counties. Thank you for the opportunity to provide you with a quote. Scott Gayman President Pacific Sewer Maintenance As always please call me directly with any questions. (760) 908 -6277 EXHIBIT'S' I04 14w Psm PACIFIC SEWER MAINTENANCE CORPORATION , P.O. Box 229 • Visalia, CA 93279 (559) 651 -3050 . (800) 292 -9927 . Fax: (559) 651 -3052 Guarantee We guarantee to kill all the roots in every sewer line we treat and to eliminate main line stoppages caused by live tree roots. This guarantee applies to sewer stoppages caused by live tree roots. If a treated sewer plugs up and floods due to live tree roots during the guarantee period, we will re -treat that section, at our own expense, or remit to the customer 100% of the payment we received to treat that section of sewer. This choice is the prerogative of the customer. The decision of the customer as to the cause of the plug -up is binding. Period We guarantee that any section of sewer line we treat will not plug up from live root intrusion and/or flood for a period of three years. The guarantee period begins on the date of treatment, and ends three years after the date of treatment. Re- treatments, performed at no charge in honor of the guarantee, do not extend the expiration date of the guarantee. Liability: Pacific Sewer Maintenance is fully insured licensed and certified to apply EPA - registered herbicides to sanitary sewers in compliance with State and Federal regulations. Pacific Sewer Maintenance accepts responsibility for any damage to aboveground vegetation. Exceptions: Guarantee is null and void if line is jet rodded rather than mechanically rodded, to clean after treatment. However, this guarantee will cover lines that are jet rodded due to stoppage. Guarantee does not cover lateral regrowth unless laterals are treated at the same time as the main line treatment. If area is very heavily wooded guarantee will be reduced.