HomeMy WebLinkAboutC-4299 - PSA for On-Call Sewer Manhole Lining ServicesAMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT
d` WITH ZEBRON CONTRACTING, INC.
Cy
FOR ON -CALL SEWER MANHOLE LINING SERVICES
�j THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this &day of July, 2009, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, (hereinafter referred to as "City ") and ZEBRON CONTRACTING,
INC., a California corporation whose address is 1141 N. Cosby Way, Unit H, Anaheim,
California 92806 ( "Contractor"), and is made with reference to the following:
RECITALS
A. On June 24, 2008, CITY and CONTRACTOR entered into an On -Call
Professional Services Agreement, hereinafter referred to as "Agreement ",
for Sewer Manhole Lining Services. This Agreement is scheduled to
expire on June 30, 2009.
B. City desires to enter into this Amendment No. 1 to extend the term of the
Agreement to June 30, 2010.
C. City and Contractor 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. TERM
The term of the Agreement shall be extended to June 30, 2010.
2. COMPENSATION
Compensation to the Contractor for services performed pursuant to this
Amendment No. 1 for all work performed from July 1, 2009, to June 30,
2010, shall be based on the attached Schedule of Billing Rates (Exhibit
B).
3. SERVICES TO BE PERFORMED
Contractor shall perform sewer manhole lining services pursuant to this
Amendment No. 1 and according to the Request to Extend On -Call
Services Agreement dated May 12, 2009, attached hereto as Exhibit A.
4.
This Agreement shall be administered by the Utilities Department.
George Murdoch, Director, shall be project administrator or his authorized
representative shall represent City in all matters pertaining to services to
be rendered pursuant to this agreement.
5. 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. 1 on
the date first above written.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH
OFFICE OF CITY ATTORNEY: A Municipal Corporation
By: By
My ette . Beauchaeorge Mu doch,
Assistant City Attorng�' Utilities Director
ATTEST: CONTRACT
ZEBRON NTRAC NG, INC.
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By: By:
Leilani Brown,
City Clerk �E�vPp
O� R Title: President
a. cn
Print Name: RmVDecker
By:
( inancialOfficer)
Title: Vice President
Print Name: Gregory Hex
Attachment: Exhibit A — Request to Extend On -Call Services Agreement
Exhibit B — Schedule of Billing Rates
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Tel: (800) 824 -4214
Fax: (714) 632 -6647
5/12/09
P.O. Box 2874
Newport Beach
California 92659
wmc zebron com
City ofNewport Beach
Utilities Department
Attn: Cindy Asher
3300 Newport Blvd.
Newport Beaeh, CA 92658-8915
Re: Amendment to Professional Services Agreement
Dear Ms. Asher:
Zebron Corporation is requesting to extend the Professional Services
Agreement for another year to commence on 6/30/10. New rate sheets are
attached.
Yours traly,
Rayny Fay Decker
ZEBRON CORPORATION
Billing Rates
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Tel: (800) 824 -4214
Fax: (714) 0326847
P.O. Box 2874
Newport Beach
California 92659
www.zebronoom
Zebron is the original proven 100% solids polyurethane. Zebron coatings have
been protecting industrial in&asianeture since 1969. The City of Los Angeles
began using Zebron in sewer structures in 1981.
Zebron coatings are made locally in Southern California. Our customers egljoy
the unique advantage of Zebron being both the manufacturer and the exclusive
applicator ofZebron Polyurethanes.
Zebron has lined in excess of 6,000 sewer manholes for local Municipal
Agencies in the last 10 years and we have over 2,000,000 square feet
performing admirably in treatment plants in Southern California and Hawaii.
The cost to pressure wash sewer manholes, stop minor water infiltration, grout
or patch repair each manhole side or bench then apply a Zebron lining will cost
approximately $340.00 per vertical foot.
These costs will remain in place until 30 June 2010.
CERTHOLDER COPY
SP
STATE P.O. BOX 420607, SAN FRANCISCO,CA 94142 -0807
IN5URANCE
FUND CERTIFICATE OF WORKERS' COMPENSATION INSURANCE
ISSUE DATE: 07 -16 -2009 GROUP.
POLICY NUMBER: 1679152 -2009
CERTIFICATE ID: 95
CERTIFICATE EXPIRES: 02 -01 -2010
02- 01- 2009/02 -01 -2010
CITY OF NEWPORT BEACH SP JOB:CONTAINMENT WALL REPAIR PROJECT #3063
3300 NEWPORT BLVD
NEWPORT BEACH CA 92663 -3878
This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the
California Insurance Commissioner to the employer named below for the policy period indicated.
This policy is not subject to cancellation by the Fund except upon 30 days advance written notice to the employer.
We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration.
This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded
by the policy listed herein Notwithstanding any requirement, term or condition of any contract or other document
with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance
afforded by the policy described herein is subject to all the terms, exclusions. and conditions, of such policy.
tHnORIZEDREPRESENTATI PRESIDENT
EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE.
ENDORSEMENT #0015 ENTITLED ADDITIONAL INSURED EMPLOYER EFFECTIVE 2009 -07 -16 IS
ATTACHED TO AND FORMS A PART OF THIS POLICY. NAME OF ADDITIONAL INSURED:
CITY OF NEWPORT BEACH
ENDORSEMENT #1600 - ROGER DECKER P,S,T - EXCLUDED.
ENDORSEMENT #1600 - GREGORY HEX VP - EXCLUDED.
ENDORSEMENT #2055 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 02 -01 -2005 IS
ATTACHED TO AND FORMS A PART OF THIS POLICY.
ENDORSEMENT #2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2009 -02 -01 IS
ATTACHED TO AND FORMS A PART OF THIS POLICY. THIRD PARTY NAME:
CITY OF NEWPORT BEACH
EMPLOYER
ZEBRON CORPORATION AND /OR ZEBRON CONTRACTING
INC
PO BOX 2874
NEWPORT BEACH CA 92859
(ANM,CSj
(REV.2 -05) PRINTED : 07 -16 -2009
WAIVER OF SUBROGATION NOTICE
Enclosed is your copy of a certificate of insurance on which the certificate holder
required a waiver of subrogation:
1. Please be advised that a waiver of subrogation requires that a 3% surcharge
will be applied by State Fund ONLY to the premium assessed on the payroll
of your employees earned while engaged in work for that certificate holder
who requested the waiver. (Note: if you have no employee payroll on that job,
then there is no charge.)
2. To apply the 3% surcharge, you must also agree to maintain accurately
segregated payroll records for employees engaged in work on job /s for the
certificate holder who has the waiver. The payroll records are subject to
verification by an auditor.
Example:
Payroll for job:
$5,000.00
Sample Rate:
13.30%
Regular Premium equals:
$
665.00
Surcharge:
3.00%
Additional Waiver charge:
$
19.95
Total premium equals
$
684.95
(665.00 +
19.95)
Cnenbfk 73109
IGZFRRONC2
ACORD. CERTIFICATE OF LIABILITY
INSURANCE
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TENNIS, EXCLUSIONS AND CONDITIONS OF SUCH
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PRODUCER'
THIS CERTIFICATE 16 ISSUED AS A MATTER OF INFORMATION
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ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HUB hnYl Insurance Serv. Inc.
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
4371 Latham St, Ste #101
Riverside, CA 92501
INSURERS AFFORDING COVERAGE
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Zebron ContraetirLg, Inc.
P.O. Box 2874
mNSRA: Allstate Insurance Company
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MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TENNIS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE OMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLANS.
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RE: Project Name Containment Wall Repair PO #30603
Certificate holder City of Newport Beach, Its elected or appointed officers, officials, employees, agents
and volunteers are to be covered as additional Insured with respect to Auto liability arising out of work
performed by or on behalf of the Contractor, endorsement to follow from carrier.
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
4 Af9 YLC1R4949aM4R09S4
LO ANY OFTHE ABOVE DEMCIUBED POLCM M CANCELL® WPORETNE EXPIRATION
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OR LIABILITY OF ANY RNm UPON THE INSURER. ITS AGENrs OD
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IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed, A statement
on this cerdfleate does not confer rights to the certificate folder In lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the Issuing Insurer(s), authorized representative or producer, and the Certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
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ACORD CERTIFICATE OF LIABILITY INSURANCE OF ID PG 2
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PRODUCER
Glenn Goodwin S Associates
Insurance Services
P.O. Box 1897
Redlands CA 92373
Phone: 909- 793 -8118 Fax: 909-793-4187
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
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INS
zebron Con ao , Inc.
N wwporta
Beacchh CA 02659
[NBUERA: Peerless Insurance Company
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ANY REQUIREMENT, TERNI 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 a SUBIECT TO ALL THE TERI^ M(CLUS ONS AND CONDITIM OF SUCH
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OTHER
DESCIOPTION OF OMAT60M I LOCATIONS IVEMLEB T EMMIUSIONS ADDED BY ENDORM MRNS I SPECIAL PROVMONS
City of Newport Beach, its elected or appointed officers, officials,
anplopaes, agents and volunteers are Additional Insured as their interest
may appear. Primary Hording S Waiver of Subrogation apply. BB: PO #30603,
Containment Wall Repair. ( *10 day notice for non - payment of promium.)
CERTIFICATE HOLDER CANCELLATION
CITYOPN
SHOULD ANY Of THE ABMMOCPe® POUCH SE CANCELLED BEFORE TH2 EWMATM
OATSTwlE OF,THEWBULNORmIRBRWOLETAEAYORTo FOAL 30* OAYSWRrm
NOTICE TO THE CnRIFICATE HOLDER NAMMM TO THE LEFT, BUT PALLURETO 00 SO SNAIL
City of Newport Beach
ROOM NO OSLIGAMONOR UASLWYOP AM kWOUPONTHEBLSURER .RSALENTSOR
3300 Newport Blvd.
nePlTeeexrATTUra
AUMORMED REPRESExrA
Newport Beach CA 92663
William V. Gee
ACORD 25 (20011118) O ACORD ZORPORATNM11888
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the poGcy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder In Ithu of such endorsement(s).
If SUBROGATION IS WANED, subject to the terms and conditions of the pocky, certain policies may
require an endorsement A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
Lr)1IM111AI Ml
The Certificate of Insurance on the reverse side of this form does not constftute a contract between
the Issuing insurer(s), authorized representative or producer, and the certificate holder, nor does h
affirmatively or negatively amend, extend or after the coverage afforded by the policies listed thereon.
2&S(2001/093 0 . i �wae�e�uu aenew
PROFESSIONAL SERVICES AGREEMENT WITH
ZEBRON CONTRACTING, INC. FOR ON -CALL
SEWER MANHOLE LINING SERVICES
THIS AGREEMENT is made and entered into as of this 24th day of June, 2008,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and ZEBRON CONTRACTING, INC., a California Corporation whose address is 1141
N. Cosby Way, Unit H, Anaheim, California 92806 ( "Contractor "), and is made with
reference to the following:
INxyrr_ %%
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 has a need for on -call assistance for sewer manhole lining services.
C. City desires to engage Contractor to perform on -call sewer manhole lining
services throughout the City on an as need basis ('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 Rayney
Decker.
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:
1. 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 provide "On -Call' sewer manhole lining services as described in
the Statement of Qualifications attached as Exhibit "A." Upon verbal or written
request from the Project Administrator, Contractor shall provide a letter proposal
for services requested by the City (hereinafter referred to as the "Letter
Proposal "). The Letter Proposal shall include the following:
(a) A detailed description of the services to be provided;
(b) The position of each person to be assigned to perform the services,
and the name of the individuals to be assigned, if available;
(c) The estimated number of hours and cost to complete the services;
(d) The time needed to finish the specific project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
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.
4. COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to- exceed
basis, in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit "A" and incorporated herein by
reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractor's compensation for services performed in
accordance with this Agreement, including all reimbursable items and
2
subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Project Administrator. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by per Council Policy F -14.
4.1 Contractor shall submit monthly invoices to City describing the work
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
costs incurred by Contractor:
A. The actual costs of subconsultants for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Rayny Decker to
be its Project Manager. Contractor shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
KI
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Contractor, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. Steve Myrter,
Department Director 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. CITY'S RESPONSIBILITIES
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractor's
work schedule.
B. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor 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 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. By
delivery of completed work, Contractor certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
CI
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession.
Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Contractor shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement including, without limitation, defects in
workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and /or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Contractor.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
l6".
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Contractor on the Project.
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator 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.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of work, Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, 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's at all times during the term of this Agreement.
A
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.
1. 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.
2. 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.
3. 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.
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E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
1. 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.
2. 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.
3. 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.
4. 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.
6. 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.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Contractor. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional 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 written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
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 Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Contractor prior notice and has received
from Contractor written consent for such changes.
E
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
:4 x0101:711`9
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
21. 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. 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 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.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and /or
restoration expense shall be borne by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
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4. 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 termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractor's violation of this
Section.
25. NOTICES
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:
Steve Myrter
Utilities Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone: 949 - 644 -3012
Fax: 949 - 646 -5204
All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Ms. Rayny Decker
Zebron Contracting, Inc.
1141 N. Cosby Way, Unit H
Anaheim, CA 92806
Phone: (714) 632-6690
Fax: (717) 632 -6647
26. 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
11
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, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provision, 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 reports and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
27. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Contractor shall conform to applicable City,
county, state and federal laws, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. 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.
29. 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.
30. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
31. 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.
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32. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
33. 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.
34. 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.
35. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
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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:
c�
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTES
By: ) G I
LaVo ne I rkles ,
City Clerk
���lPORT
°�ciroa`'
CITY OF NEWPORT BEACH
A Municipal Cvrporation
Uti (tics Yl�il ector
for the City of Newport Beach
ZEBRON c071 CTING, INC:
By:
orporate Officer)
Title: dice
Print
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By: f / �-/
(Financial Officer)
Title: UIL'c
Print Name: 606c (�X
Attachments: Exhibit A — Statement of Qualifications /Billing Rates
14
EXHIBIT "A"
ZEBROPI'
April 3, 2008
Mr. Ed Burt, Operations Mgr.
Utility Department
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658
Dear Mr. Burt,
Zebron is the original proven 100% solids polyurethane. Zebron coatings have been protecting
industrial infrastructure since 1969. The City of Los Angeles began using Zebron in sewer
structures in 1981.
Zebron coatings are made locally in Southern California. Our customers enjoy the unique
advantage of Zebron being both the manufacturer and the exclusive applicator of Zebron
Polyurethanes.
Zebron has lined in excess of 6,000 sewer manholes for local Municipal Agencies in the last 10
years and we have over 2,000,000 square feet of Zebron performing admirably in treatment
plants in Southern California and Hawaii.
The cost to pressure wash sewer manholes, stop minor water infiltration, grout or patch repair
each manhole side or bench then apply a Zebron lining will cost approximately $340.00 per
vertical foot. These costs will remain in place until 30 June 2009.
Due Xg commodi costs ' today's markets they has been ubstantial inc ase in the
cost erials used r uce Zebron �b ur anesn will do al n ' power to
keep quoted abov if the cost f ma s is drive significan the
com there co be an crease in cost f co g the ru es.
We are requesting your consideration to be included on your select prod uct/contractor's list for
projects where the City may benefit from our proven technology and expertise.
Sincerely,
Rayny Fay Decker