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HomeMy WebLinkAboutC-4511 - On-Call M/RSA for Vessel Pumpout Facility Maintenance and RepairAMENDMENT NO. ONE TO ON -CALL MAINTENANCE AND REPAIR SERVICES AGREEMENT WITH MIKE KILBRIDE, LTD. FOR VESSEL , PUMPOUT FACILITY MAINTENANCE AND REPAIR THIS AMENDMENT NO. ONE TO ON -CALL MAINTENANCE AND REPAIR } SERVICES AGREEMENT ( "Agreement ") is made and entered into as of this 437/sfi' day of May, 2013 ("Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and Mike Kilbride, LTD., a California corporation ( "Contractor"), whose address is 2072 Placentia Avenue, Costa Mesa, CA 92627, and is made with reference to the following: RECITALS A. On May 21, 2012, City and Contractor entered into an On -Call Maintenance and Repair Services Agreement ( "Agreement") for vessel pumpout facility maintenance and repairs ( "Project"). B. City desires to enter into this Amendment No. One to increase the total compensation and to update insurance requirements. C. Pursuant to the authority conferred to City as a charter city under California Constitution, Article XI, Section 5, the City hereby exempts this Project from the payment of prevailing wages because the funds used to finance this Project are local funds and this Project is a matter of local concern. D. City and Contractor mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: COMPENSATION TO CONTRACTOR Section 4.1 of the Agreement shall be amended to read as follows: "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 Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Except as otherwise provided herein, no rate changes shall be made during the term of this Agreement without the prior written approval of City. Contractor's compensation for all Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed One Hundred Twenty Thousand Dollars ($120,000.00), without prior written amendment to the Agreement." Section 10 of the Agreement shall be amended to read as follows: "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 or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit D, and incorporated herein by reference." 3. PREVAILING WAGE Section 12 of the Agreement is hereby deleted in its entirety. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: f 213111 By: Aaron C. Harp City Attorney ATTEST: Date: JJ By: A W— C - Leilani I. Brown City Clerk ®� Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: S� 2ti1 t?:� By: Da ' iff City Manager CONTRACTOR: Mike Kilbride, LTD., a California orp�of ation� Date: % r� By: Michael J. Kilbride President and Treasurer [END OF SIGNATURES] Exhibit D — Insurance Requirements Mike Kilbride, LTD Page 2 INSURANCE REQUIREMENTS — MAINTENANCE /REPAIR SERVICES 1. Provision of 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor agrees to amend, supplement or endorse the existing coverage. 2. 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. 3. Coverage Requirements. A. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance and, if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Click here to enter text. Page D -1 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 each accident. D. Builder's Risk Insurance. For Contracts with property exposures during construction, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special causes of loss form with limits equal to 100% of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and/or Flood. City shall be included as an insured on such policy, and Contractor shall provide City with a copy of the policy. E. Umbrella or Excess Liability Insurance. Contractor shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than four million dollars ($4,000,000) that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability Such policy or policies shall include the following terms and conditions: • A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason; Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall "follow form" to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies. F. Pollution Liability Insurance. Contractor shall maintain a policy providing contractor's pollution liability ( "CPL ") coverage with a total limit of liability of no less than $5,000,000 per loss and $5,000,000 in the aggregate per policy period dedicated to this Project. The CPL shall be obtained on an occurrence basis for a policy term inclusive of the entire period of construction. If all or any portion of CPL coverage is available only on a claims -made basis, then a 10 -year extended reporting period shall also be purchased. The CPL policy shall include coverage for cleanup costs, third -party bodily injury and property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by contracting operations. Coverage as required in this paragraph shall apply to sudden and non - sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, or gases, Click here to enter text. Page D -2 waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for transportation and off Site disposal of materials. The policy shall not contain any provision or exclusion (including any so- called "insured versus insured" exclusion or "cross - liability' exclusion) the effect of which would be to prevent, bar, or otherwise preclude any insured or additional insured under the policy from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self - insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Click here to enter text. Page D -3 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. D. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non - compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. F. Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self - insured retentions be eliminated, lowered, or replaced by a deductible. Self - insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non - Compliance If Contractor or any sub - consultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Contractors right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Click here to enter text. Page D -4 Contractor's 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. Click here to enter text, Page D -5 ON -CALL AGREEMENT FOR MAINTENANCE AND REPAIR SERVICES WITH MIKE KILBRIDE, LTD. FOR VESSEL PUMPOUT FACILITY MAINTENANCE AND REPAIR THIS AGREEMENT FOR MAINTENANCE AND REPAIR SERVICES ( "Agreement') is made and entered into as of this I� day of 111)± 2012 ( "Commencement Date ") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and MIKE KILBRIDE, LTD., a California Corporation ( "Contractor"), whose principal place of business is 2072 Placentia Avenue, Costa Mesa, CA 92627 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 requires on -call assistance for vessel pumpout facility maintenance and repair. C. City desires to engage Contractor to conduct quarterly inspections and maintenance and on -call repair for City -owned vessel pumpout stations ( "Project'). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1i�1�:71!II The term of this Agreement shall commence on the Commencement Date, and shall terminate on February 28, 2014, unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Contractor shall perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ( "Services" or "Work "). As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work 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. 2.2. 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. 3. TIME OF PERFORMANCE 3.1. Upon verbal or written request from the Project Administrator (as defined below in Section 6), 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: 3.1.1. A detailed description of the Services to be provided; 3.1.2. The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; 3.1.3. The estimated number of hours and cost to complete the Services; and 3.1.4. The time needed to finish the specific Project. 3.2. 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. 4. COMPENSATION 4.1. 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 total compensation for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Thirty Thousand Dollars and 00/100 ($30,000.00) without written amendment to the Agreement. 4.2. 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 from the Scope Services attached hereto 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. 4.3. City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Services attached hereto. Unless otherwise MIKE KILBRIDE, LTD. Page 2 approved, such costs shall be limited and include nothing more than the 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. 4.4. 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 the Project Administrator (as defined in Section 5 below) to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor 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 A. 5. ADMINISTRATION This Agreement will be administered by the Public Works Department. Shannon Levin, Harbor Resources Supervisor, or her designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 6. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 6.1. Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed unless approved in advance by the Project Administrator. 6.2. 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 Agreement, and that it will perform all Services in a manner commensurate with highest 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. 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. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, MIKE KILBRIDE, LTD. Page 3 volunteers, 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 breach of the terms and conditions of this Agreement, 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). 7.4. 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 Consultant. 7.5. 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. 7.6. 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. 7.7. The rights and obligations set forth in this Section shall survive the termination of this Agreement. 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. 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 MIKE KILBRIDE, LTD. Page 4 shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 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 10.1. 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Contractor's bid. 10.2. Coverage and Limit Requirements. 10.2.1. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 10.2.2. General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3. Automobile Liability. 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 accident. MIKE KILBRIDE, LTD. Page 5 10.2.4. Builders Risk. For Agreements or Contracts with Construction /Builders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special form causes of loss with limits equal to one hundred percent (100 %) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and /or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 10.3. Other Insurance Provisions or Requirements. 10.3.1. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.3.2. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1. City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 10.3.2.2. Contractor's insurance coverage shall be primary insurance and /or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to the City. Any insurance or self- insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 10.3.2.3. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. MIKE KILBRIDE, LTD. Page 6 10.4. 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. 10.5. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.6. Self- Insured Retentions. Contractor agrees not to self- insure or to use any self- insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self- insure its obligations to City. If contractor's existing coverage includes a self- insured retention, the self- insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self- insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. 10.7. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. 10.8. Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 10.9. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 10.10. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. MIKE KILBRIDE, LTD. Page 7 10.11..Citv's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and /or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. 10.12. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.13. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. BONDING 11.1. Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement: a Labor and Materials Payment Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Agreement and in the form attached hereto as Exhibit C which is incorporated herein by this reference; and a Faithful Performance Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Agreement in the form attached hereto as Exhibit D which is incorporated herein by this reference. 11.2. The Labor and Materials Payment Bond and Faithful Performance 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 Kev Rating Guide: Property - Casualty. 11.3. The Contractor shall deliver, concurrently with execution of this Agreement, the Labor and Materials Payment Bond and Faithful Performance 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 State of California. 12. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and MIKE KILBRIDE, LTD. Page 8 overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him /her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 13. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the Work outlined in the Scope of Work provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 14. 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. 15. CONFLICTS OF INTEREST 15.1. 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. 15.2. 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. MIKE KILBRIDE, LTD. Page 9 16. NOTICES 16.1. All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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: Shannon Levin, Harbor Resources Supervisor City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Email: cmiller @newportbeachca.gov Phone: 949 - 644 -3043 Fax: 949 - 949- 723 -0589 16.2. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Mike Kilbride MIKE KILBRIDE, LTD. 2072 Placentia Avenue, Costa Mesa, CA 92627 Costa Mesa, CA 92627 Email: mikekilbride @earthlink.net Phone: 949 - 548 -0106 Fax: 949 - 548 -1616 17. NOTICE OF CLAIMS 17.1. Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 900 et seq.). 18. TERMINATION 18.1. 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 MIKE KILBRIDE, LTD. Page 10 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. 18.2. 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. 19. STANDARD PROVISIONS 19.1. 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. 19.2. 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. 19.3. 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 Contract or implied covenant shall be held to vary the provisions herein. 19.4. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 19.5. 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. 19.6. 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. 19.7. 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. MIKE KILBRIDE, LTD. Page 11 19.8. 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. 19.9. 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. 19.10. 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. 19.11. No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 19.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] MIKE KILBRIDE, LTD. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE A Califorpja nicipal corpora Date: 3 0// L Date: Z By: Aaron C. Harp Ste can G. Badum City Attorney ptr6lic Works Director ATTEST: Date: M CONSULTANT: MIKE KILBRIDE, LTD., a California Corporation Date: 4 UUW- �flr By:� LL' (� 1 ���1 Leilani I. Brown Michael J. Kilbride City Clerk �E`wPO President and Treasurer _ Z v �P C,4t.I FOPL [END OF SIGNATURES] Attachments: Exhibit A - Scope of Work and Schedule of Billing Rates Exhibit B - Labor and Materials Payment Bond Exhibit C - Faithful Performance Bond MIKE KILBRIDE, LTD. Page 13 EXHIBIT A SCOPE OF WORK AND SCHEDULE OF BILLING RATES 01/12/2012 15:02 9495481616 KILBRIDE PAGE 01 MIKE HILERIDE, LTD. General Building & Engineering Contractors License 738400 P.O. Box 3341 Newport Beach, CA 92659 -8341 (949) 548 -0106 9 Fax (949) 548 -1616 January 12, 2012 Shannon Levin Harbor Resources Fax (949)723 -0559 Re: City Pump Outs Shannotl: s We write to amplify the service our company provides to the City's pump outs. 1. Perform four service balls per year for each City pump. All pump components are checked for wear & condition. Hour meter is recorded and a vacuum gauge rests the pump. We charge the City $300. for all five puMps..oa each occasion and $1,200. total per year_ 2. We are "On Call" with the City to repair & replace pumps as is necessary. We inventory all parts necessary to rebuild an entire pump assembly 3. Our primary technician is Mile Kilbride. Mike was trained by a facfory technician sent by the manufacturer. 4. For service calls, we charge $65. per hour, including travel time & charge the City at our cost for replacement parts. If we may fruther elaborate on our pump out service to the City, please do not hesitate to call. Thank you, Mike Kilbride EXHIBIT B CITY OF NEWPORT BEACH BOND NO, 71257192 LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to MIKE KILBRIDE, LTD. hereinafter designated as the "Principal," a contract for the Vessel Pumpout Facility Maintenance and Repair, located at Newport Harbor in the City of Newport Beach, in strict conformity with the Contract on file with the office of the City Clerk of the City. of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of Princlpal's subcontractors, shall fall to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the Work agreed to be done, or for any Work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned. Principal, and, Western Surety Company duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety") are held firmly bound unto the City of Newport Beach, in the sum of Thirty Thousand Dollars and 001100 ($30,000.00) lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by the City of Newport Beach under the terms of the Contract; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the Work contracted to be done, or for any other Work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such Work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such Work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorney's fee, to be fired by the Court as required by the provisions of Section 3250 of the Civil Code of the State of California. C -1 Page EXHIBIT C event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the Work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Contract or to the Work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by the City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond, IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the 9th day of April , 2012. Mike Kilbride, Ltd. Name of Contractor (Principal) Western Surety Company Name of Surety P.O. Box 5077 Sioux Falls SD 57117-5077 Address of Surety ,M \-L'�.-QI � Authorized Signatureffitle Authorized Agent Signature Michael L. Adams- Agent Print Name and Title (800) 331-6053 CORPORA% Telephone SEAL J. NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED D-2IPage CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California 1 County of J} On J' i_ before me, Date personally appeared "o n✓tf' CC �1! NILA DANIELLE LEMS Are Commission # 1880102 IL Notary Public • California i Orange County M Comm. Ex Ires Feb 13, 2014 who proved to me on the basis of satisfactory evidence to be the person(e) whose name(e) is/are subscribed to the within instrument and acknowledged to me that he /s4@AWV executed the same in his/iwr{their authorized capacity(ies), and that by hiafherkheir signature(@) on the instrument the person(e), or the entity upon behalf of which the person(&) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand /[and �doofficial seal. Place Notary Seal Above Signature-- `-y %?�!t" Signature Q of OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: •12 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Number of Pages: Signer's Name: J, ZLpba'A�,r�igner's Name: ❑ Individual ^ ❑ Individual 9 Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Prt ❑L "td ❑G I ❑❑P t ❑L "td ❑G I a 71ZS7/ 42- net imia enera _ at ner — In enera • Attorney in Fact ❑ Attorney in Fact • Trustee Top of thumb here ❑ Trustee Top of thumb here • Guardian or Conservator ❑ Guardian or Conservator • Other: ❑ Other: 4 =- . -. . �. Signer Is Representing: Signer Is Representing: 02007 National Notary Association• 9350 De Soto Ave., P.O. Box 2402- Chatsworth, CA 91313- 2402 - viww.NationalNotaryorg Item405907 Reorder.. Cell Toll -Free 1. 800.878.8827 F POWER OF ATTORNEY - CERTIrMD COPY Bond No. 71257192 tfnew All Most By These Preseato, that WESUR14 SURETY COMPANY, a corporation duly organized and erdsting under the lave of the State of South Dakota, end having its primpal aBee in Bic" Palls, Broth Dakab Ohs `Campany7, does by these prmento make, mmtitan.and.p cut iu true and lawfnl attornq(s )-in-faeL with fa power and authority hereby conferred, W mo:uW, arsaowledge and deliver for and an ire behalf. Surety, bands for: Principal: Mike K- lbride, Ltd Obligee: City of Newport Beaen A--t 5500,000.00 and W bled the Company thereby w fully and b the .sore extent ns if ends hoed. xce..1gaed by the Smior Vice Pserident, .end with the corporate sea] or the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said ¢eWmq(s) -in -feat may do within the above stated limitations. Said appointment is made under sad by authority of the follovdea bylaw of Warts Surety Campss y whieh...i. in full fare. and offect. 'Swim f. All bonds, policies, undertakings, Powers of Attorney or otbor obligetiean of the corporation shell be curnted in the oorparato name dthe Company by the President, Summers. any Assistant Smatary, Transverses, or any Vim President or by a oh oil= affaara sr the Board of Drrmtors ores, authorize. The Prasidmt, any Vim President, Samntary, any Assistant: Secretary, or the Troawee may appoint Atteraeyo in Fact or oases who shalt have suthosity to issue bands, policies, arundertakinp in the same of the Company. 71. corporals seat is sat smsssary fns the validity of any, btmda, Wild., undertakings, Powers of Attorney or other obligations of the corporation. Thnsignaturanfaryy such ntfirwr and the mrpnmtA real moyha printul ly fenrimile..' All authority busby conferred shall expire and terminate, without notice, unless toed before midnight or July 9 , 7.01:1 , 6m umB sunk time shill ba irrevoaaMe and th Cull fame and af&et. In Witness Whereof Weston Surety Company bur caused these presents W be ngoed by its Senior Vice President, Pad T. Bra tat, and its corawki W be.Bad thin 9th day d Aori 1 2012 „4m°�yRff Pp .,4 _��L1r �. si6 WEST R SURE COMPANY e : sgx Paul T. Brufl aVScWor Vim Pmddmt i 3C* +��tag��.. � ab •r *�A CO On this 9th day of Aori1 ,1. Lt. you 2012 ,before cos,awtarypoWic,pvswuallyaypearod - Paul T. BruSat, who being to me duly sworn, neknowledged that he signed the above Power of Attorney as the aforesaid officer of W7 M%HN SURETY COMPANY and aaimowledged said instrument W be the vduntary art and dead of add aarporstim. eaw..+..vvsnwww.,. , p D. KRELL rs/A�PI 1>�000L1C Sam Notary Public- South Dakota QAf70Lf. atY Campdsalan Erplres Naven6er 30, 2072. I the undord teed M. of W.ster. Surety Company, .stock car wrati® of the Stmt of South Dakota, do hrreby aorLiry that the attached Power of Attorney is is full fore and effect and is it a ocabie, and furehermoro, that Sodden y of the byle. of the Comply at ,A forth in th. Pew.. of Ats—a W i. sour in it m . In testimwy whereof, I have hereunto set my hand and and of Western Burst, Company this 9th day of April 2012 , WEST R SURE COMPANY Pad T. BrudIaVSemior Vice President Fenn F53ge-B2006 CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT State of Califoorrn'ia's ,' / ' County off�GU� lb, On ' b-- ZiI Date personally appeared CML CODE 9 1189 WITNESS my hand and official seal. Signature: Place Notary Seal Above Signature Of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document �X , - ` QS Title or Type of Document: I 'f ' WN.aI.�' Document Date: Signer(s) Other Than Named Above: Capacity(fes) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Tftle(s): • Individual hossm • Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact • Trustee • Guardian or Conservator ❑ Other: Signer Is Representing: u of Pages: Signer's Name: ❑ Corporate Officer — Title(s): • Individual • Partner — ❑ Limited ❑ General Top of thumb here • Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: �1 0 2010 National Notary Aaeooletlon - NatlonalNotary.org • 1. 800 -US NOTARY (1 -800- 878.6827) Item #5907 who proved to me on the basis of satisfactory evidence to be the personKwhose nameWis/� subscribed to the within instrument and acknowledged to me that he /41:i Ue� executed the same in his/f Wr' authorized capacity(y , and that by JENNIFER CARSDN ZEIVEL hisllhliifrrt�ief signature�< on the instrument the Commission * 1814419 personjW, or the entity upon behalf of which the Notary Public - California z person> cted, executed the instrument. Riverside County M Comm. Ex Tres Ss 2t, 2D12J I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: Place Notary Seal Above Signature Of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document �X , - ` QS Title or Type of Document: I 'f ' WN.aI.�' Document Date: Signer(s) Other Than Named Above: Capacity(fes) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Tftle(s): • Individual hossm • Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact • Trustee • Guardian or Conservator ❑ Other: Signer Is Representing: u of Pages: Signer's Name: ❑ Corporate Officer — Title(s): • Individual • Partner — ❑ Limited ❑ General Top of thumb here • Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: �1 0 2010 National Notary Aaeooletlon - NatlonalNotary.org • 1. 800 -US NOTARY (1 -800- 878.6827) Item #5907 EXHIBIT C CITY OF NEWPORT BEACH BOND NO. 71257192 FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ 900.00 being at the rate of $ 30.00 thousand of the Contract price. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract. WHEREAS, the City of Newport Beach, State of California, has awarded to MIKE KILBRIDE, LTD. hereinafter designated as the "Principal," a contract for the Vessel Pumpout Facility Maintenance and Repair, located at Newport Harbor in the City of Newport Beach, in strict conformity with'the Contract on file with the office of the City Clerk of the City of Newport Beach, which is Incorporated herein by this reference. NOW, THEREFORE, we, the Principal, and western Surety company duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety "), are held and firmly bound unto the City of Newport Beach, in the sum of Thirty Thousand Dollars and 00/100 ($30,000.00) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the Work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on Its part, to be kept and performed at the time and in the manner therein specked, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified In this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the D- 1IPage CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of ✓ I e— On 3' (q I L before me, ate - personally appeared ��r -A.a.Q 1 tam) N ama (s)of Signar(7 NILA DANIELLE LEMAS I Commission 0 1880102 Notary Public - California i Orange County Comm. E)t Ires Feb 13, 2014 who proved to me on the basis of satisfactory evidence to be the person(&) whose name(o) is/aw subscribed to the within instrument and acknowledged to me that he /skoAliley executed the same in his/hen4Meir authorized capacity(ia@), and that by his/ht3n4helr signature(e) on the instrument the person(&), or the entity upon behalf of which the person(@) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Place Notary Seal Above Signature of Notary Public OPTIONAL Though the Information below is not required by law, if may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: M f C it n• r L 1/-'0JAAAe ❑ Individual W1 Corporate Officer — Title(s): fU( ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: OF SIGNER ."' '7/2 S719Z Number of Pages: Z Signer's Net ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner —17D Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 57 TNUMSPRINT OF SIGNER 0 02007 Nalonal Notary Assoclaaon• 9350 De Solo Ava., P.O. Box 2402 •Chatexrorth, CA 913132402• xiwu.Nafionafttary.org Item #5907 Reo der. Call Toll -Free 1.80"76-6827 Western Surety t r ``C _A .pCl:_ y POWER OF • 1 COPY Bond No. 11257 _ 92 Know All Men By These Presents, that WEMR14 SURETY COMPANY, a corporation duly organized and existing under the law, of the State of South Dakota, and having its principal office in $is= Falls, South Dakota (the "Company"), does by these presents matte, constitute and appoint MICHAEL L ADAMS its true and lawful attorney(O -in -fact. with full power and authority hereby conferred, to execute, acknowledge and deliver for and on its behalf n Surety, bonds for: Principal: Mike K_lbride, Ltd Obligee: City of Newport Beacn Arrsount $500,000.00 and to bind the Company thereby as fully and W the same extent as if such bonds were signed by the Senior Vice President, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all that the said attorney(s) -in -fact may do within the above stated Iimitatinn;. Said appeintment is made under and by authority of the following bylaw of Wastarn Surety Company which remains in full forte avd effect. -Smiion 7. ALL bonds, policies, undertakings, Powcm of Attorney or other obligations of the corporation shill be executed in the corporatename of the Company by the President, Secretary, any Assistant Secretary, Treasurer, or any Vim President or by such other officals as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attomeyc in Fact or agents who shall have authority to issue bonds, policies, or undertalrivgs in the name of the Company. The corporate seal is net risonmry, for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the rnrpnratinn TAn signatnrn nfany eurh n/Rrnr and the rarpnrata seal may he. printed hY facsimile.." All authority hereby conferred shall expire and terminate; without notice, uNess used before midnight of July 9 2011 , but until such time shall be irrevocahhi and in full force and effect. In Witness Whereof, Western Surety Company has eemed these presents to be signed by its Senior Vice President, Paul T. Bruflat, and its ccnMpk;Wjpl to be affixed this 9th day of April i 2012 4- IVIMMWIS� WEST R //SURE COMPANY 6-Z Paul T. Brufla 'or Vice President On this 9th day of April I in the ye. 2012 ,before nrv, acutely public, yer.wially ap,siued Paul T. Bruflat, who being to me duly swam, acknowledged that he signed the above Power of .Attorney as the aforesaid officer of WESTERN SURM COMPANY and acknowledged said instrument to be the voluntary act and deed of said corporation. 0- iLREIL r Al f' �CfiiA/f_irl, . yilA ��-+,, �MOfARV pUBtIC Notary Public- South Dakota �Adj�/SOUiH QlllOtyfA My Commisslon Erplres November 30, 2012 1 the undersigned officer of Western Surety Company, a stock corporation of the State of South Dakota, do hereby certify that the attached Power of Attorney is in Full force and effect and is irrevocable, and furthermore, that Section I of the bylaws ofth Company a: sat. lmth in the Pnwer nFA9amey is new in ( . _ In testimony whereof, I have hereunto set my hand and seal of Western Surety Company this 9th day of April 2012 , WEST R SURE" COMPANY Paul T. BruflaVSewor Vice President Farm F500 &32005 CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT State of California 1 County of & 1 "451& % n % On Aim 23 ll, before me, � I A l% n 7a VL ` Oate I Hera Insert Name and Tide of ft Officer personally appeared JENNIFER CARSON ZEIYEL Commission • 1814419 Notary public - CNtlornis i Riwtside County My Comm. E ires Sep 21,1012 CML CODE § i 189 who proved to me on the basis of satisfactory evidence to be the person�srwhose names / subscribed to the within instrument and acknowledged to me that he /p6bey executed the same in Ver /their authorized capacity and that by h,96eMDc<r signatureLKon the instrument the personxl —or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand d e i ' seal. Signature: Place Notary Seal Above Igneture or Notary Public OPTIONAL Though the Information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: _ Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: Number of Pages: 2 ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here • Attorney in Fact • Trustee • Guardian or Conservator ❑ Other: Signer Is Representing: • Individual • Partner — ❑ Limited ❑ General Too of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: I 0 2010 National Notary Aeaociatlon • NatlonalNotary.org • 1.800•U8 NOTARY (1.800.876.6827) Item #5907 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 5 -08 -12 Dept. /Contact Received From: Tania Date Completed: 5 -11 -12 Sent to: Tania By: Joel Company /Person required to have certificate: Mike Kilbride, Ltd. Type of contract: All Other 1. GENERAL LIABILITY EFFECTIVE /EXPIRATION DATE: 10 -30- 11/10 -30 -12 A. INSURANCE COMPANY: Gemini Insurance Co. B. AM BEST RATING (A -: VII or greater): A +: XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $1M or greater): What is limit provided? 1,000,0002,000,000 E. ADDITIONAL INSURED ENDORSEMENT— please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided ?) N/A include): Is it included? (completed Operations status does F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: ❑ N/A Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No 11. AUTOMOBILE LIABILITY EFFECTIVE /EXPIRATION DATE: 3- 16- 12/9 -16 -12 A. INSURANCE COMPANY: State Farm Mutual Auto Insurance Company B. AM BEST RATING (A-: VII or greater) A++: XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 CSL E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided ?) N/A F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No Ill. WORKERS'COMPENSATION EFFECTIVE /EXPIRATION DATE: 10- 01- 11/10 -01 -12 A. INSURANCE COMPANY: State Fund B. AM BEST RATING (A -: VII or greater): Not Rated C. ADMITTED Company (Must be California Admitted): D. WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: H. NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY Qilk '1 V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: M Yes ❑ No M Yes ❑ No 1,000,000 M Yes ❑ No M N/A ❑ Yes ❑ No ❑ N/A M Yes ❑ No M N/A ❑ Yes ❑ No M N/A ❑ Yes ❑ No M N/A ❑ Yes ❑ No M Yes ❑ No 5 -11 -2012 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach RISK MANAGEMENT APPROVAL REQUIRED (Non- admitted carrier rated less than _' Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval /exception /waiver: Approved: Risk Management Date * Subject to the terms of the contract. CERTHOLDER COPY SK P.O. BOX 420807, SAN FRANCISCO,CA 94142 -0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 10 -01 -2011 CITY OF NEWPORT BEACH SK ATTN: BUILDING DEPARTMENT 3300 NEWPORT BLVD NEWPORT BEACH CA 92663 -3818 GROUP: 000238 POLICY NUMBER: 0012920-2011 CERTIFICATE ID: 137 CERTIFICATE EXPIRES: 10 -01 -2012 10- 01- 2011/10 -01 -2012 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form .approved by the California Insurance Commiss.oner 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. f • t9/1ta4 G W t1lhorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,.000 PER OCCURRENCE ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 10 -01 -2010 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER MIKE KILBRIDE, LTD. DBA: MICHAEL J. KILBRIDE, LTD DBA: COAST WATER AND POWER PO BOX 3341 NEWPORT BEACH CA 92659 [B14.SP] PRINTED : 05 -09 -2012 Ifl EV.8 -20101 ®' CERTIFICATE OF LIABILITY INSURANCE DATE IMm:oorcvrYl CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE .AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALLTHE TERMS, EXCLUSIONS AND C014DITIONS OF SUCH LICI AITS SHOWN MAYHAVF BEEN REDUCED BY PAID CLAIMS, n5/osrzol z THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER AND THE CERTIFICATE HOLDER. IMPORTANT: It the certificate holder is an ADDITIONAL INSURED, the policypes) must be endorsed. 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). PROmxEn PhWW' t7frn)a37 -3626 Fa: (7601837 -M98 r,ORrACT M. L. Adams Insurance Services PA. L. ADAMS INSURANCE SERVICES PHONE - Fa¢ En (760) 837 -3626 c. Rn (760) 837 -3898 42 -280 BEACON HILL, SUITE D -7 ADDRESS wv�w- mladamsins.com PALM DESERT CA 92211-5168 w-roseR 3128 a 1,000,000 n INSURER(S) AFFORDING COVERAGE NAIL; Agencr4e= 0609"s ?? IMUREO DSUPEPA Gemini Insurance Co MIKE KILBRIDE, LTD. 50,000 MEO DIP J.Ary ODS V =seen) P.O. BOX 3341 DO KERB WSURERC NEWPORT BEACH CA 92659 WENNERD PERS01AL &ADV IMLtl!PY V%PER E ASURERF ' $ 2,000,000 COVERAGES CERTIFICATE NUMBER: 17625 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE .AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALLTHE TERMS, EXCLUSIONS AND C014DITIONS OF SUCH LICI AITS SHOWN MAYHAVF BEEN REDUCED BY PAID CLAIMS, r�T' LTR TYPE OF INSURANCE M15R. SCIR VJYO WID POLICY NUMBER PONCE EFF MWDDMYY'' POLICY ExP MMNDNYYT i LIMITS A GEHERAL UAemT' VCGPD19660 10/30/11 101311/12 EACHOCCUPPEMCE a 1,000,000 X COI.E.TeP.CIAL L•EIJEP_LL LIABILITY CLAIMS -MADE I—XIOCCUR LuNAGE TO FemEC BIASES E N1e:Ke 50,000 MEO DIP J.Ary ODS V =seen) 51000 PERS01AL &ADV IMLtl!PY $ 1,000,000 GENERAL AieGREGATE $ 2,000,000 GENL AGGPEGA.TE LRAIT APPLIES PER PRODUCTG- C01dPhJP A.;3G $ 2,000,000 POLICY PRO- L�_ _ $ AUTOMOBILE LIABILITY COMPLIED SINGLE LIMIT LEa accident) $ At 'Y AUTO BODILY INJURY (PPI aersenl $ AU. YATIEO AUT01 EODILY INJURY IPer aclidont) $ :nEOIAED AUTOS PPOPERTY DAMIAGE HIRED1191"05 (Fcruti&ri) $ NON -OWNED PUT05 9 uH,eREL1A LAD prr LR EcCHOCCIAREIICE g .QOtsREGATE J IXCE55 LKB CL-NS -MADE DEDUCTIBLE $ T P TErmCN S WORKERS COMPENSATION AND EMPLOYERS' DAeILnY YIN AN, PROPNEIOWRT PANEREAEC1MVE � OFFICEWMEMSER EXCLVOED' NAMCUAroinlml NIA 10Rr LPdie c E.L EACH MCCIDENF S EL DISEASE -EA EMPLOYEE $ tl,g. De:mDe WmeJ cESCraPncW OFOr�z+TlauXaDw EL DISEASE- F+JLICr L:Nn $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Adach ACORD 101, Addill.nal RAmarNS Schedule, IT more space is requlretl) TEN DAY NOTICE OF CANCELLATION WILL BE GIVEN FOR NON PAYMENT OF PREMIUM. CITY OF NEWPORT BEACH, ITS OFFICERS, OFFICIALS, EMPLOYEES AND VOLUNTEERS NAMED AS ADDITIONAL INSURED PERFORM CG 20 1010 Ot AND CG 2037 ATTACHED. WAIVER OF SUBROGATION PER CG2404. PRIMARY WORDING PER VE 03 581185. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CITY OF NEWPORT BEACH 3300 NEWPORT BEACH BLVD A r-K)P;'_ED REPRESENTATNE P O BOX 1768 NEWPORT BEACH CA 92658 Attention: ..tie ke Rtla :ORD 1 5 (2009/09) ©7988 -2009 ACORD CORPORATIO .All rights reserved. The ACORD name and loon are maistered marks of ACORD Policy Number: Insured Name:M1KE KILBRIDE LTD VE 03 58 1108 Effective Date: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARYAONCONTRIBUTORY This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART If you are required by a written contract to provide primary insurance then this policy shall be primary and non - contributory and condition 4, Other Insurance, as shown under Section IV on form CG 00 01 12 07, does not apply but only with respect to coverage provided by this policy for the additional named insured in the schedule. Additional Premium: INCLUDED VE 03 58 11 08 Page I of I Policy Number: VCGPO19660 CG 2010 10 01 Insured Name.:lVIIKE KILBRIDE LTD Number: 25 Effective Date: 10/30/2011 TIIIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: CONINIERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name of Person Or Organization: AS REQUIRED BY WRITTEN CONIRACT; COMMERCIAL PROJECTS ONLY, INCLUDING APARTMENTS (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. Section II — Who is An Insured is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured. B. With respect to the insurance afforded to these additional insureds, the following exclusion is added: 2. Exclusions This insurance does not apply to "bodily injury" or "property damage" occurring alter; (1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service: maintenance or repairs) to he performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed: or (2) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. CG 2010 10 01 Page 1 of 1 Policy Number: VCGP019660 CG 203710 01 Ensured Name:D4IKE I ILBRIDE LTD Number: 24 Effective Date: 10130/2011 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OI{ CONTRACTORS COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LI.ABILITY COVERAGE PART SCHEDULE Name of Person or Organization: AS REQUIRED BY \WRITTEN CONTRACT Location And Description of Completed Operations: COMMERCIAL PROJECTS ONLY, INCLUDING APARTMENTS Additional Premiurn:INCLUDED (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) Section II — W7 ►o is An Insured is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work' at the location designated and described in the schedule of this endorsement performed for that insured and included in the "products - completed operations hazard ". CO 2037 10 01 Page 1 of 1 Policy Number: VCGP019660 CG 24 0410 93 Insured Name: A11KE KILBRIDE LTD Number: 29 Effective Date: 10/302011 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY WAIVER OF TRANSFER OF RIGHTS OF R ECOV ER17 AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE SCHEDULE Name of Person or Organization: AS REQUIRED BY WRITTEN CONTRACT (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV— COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "Your work" done under a contract with that person or organization and ineluded in the "products - completed operations hazard ". This waiver applies only to the person or organization shown in the Schedule above. CG 24 04 10 93 Copyright, Insurance Services Office, Inc., 1992 Page 1 of 1 ❑ .N�.' ®B8 ®� CERTIFICATE ®F LIABILITY INSURANCE OATS IMM2012 o51o3nD12 TIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE MOLDER. TXIS rTHIS ATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED NTATIVE OR PRODUCER AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. 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 ceNficate holder In lieu of such endureement(s). PROOUCEIL Phone: (760)837-0626 Fax (760) 837-3898 M. L. ADAMS INSURANCE SERVICES "cT M. L. Adams Insurance Services PHONE (760) 837 -3626 PAX (760) 837.3898 m 42.280 BEACON HILL, SUITE D•7 PALM DESERT CA 92211.5168 sMAa ADOREGe W .mladamsins.eom FaopucER 3128 W6TO.Y. Ie: INSURERIS) AFFORDING COVERAGE mca Agency LlCr. 0609232 WSWtED MIKE KILBRIDE, LTD. W6URERA Gemini Insurance Co X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE I A I OCCUR P.O. BOX 3341 WwRER a ' DAMAGE TO RENTED .+L_RFJNIBEB(Eeoeu uencel NEWPORT BEACH CA 92659 MED. EXP (Any one Person) y 5,000 NSURNt D: 6 11000,000 IN6oRERE IN611HEAF COVERAGES CERTIFICATE NUMBER: 17599 REVISION NUMBER: THIS IS TO CERTIFY THATTHE POLICIES OF INSURANCE USTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, FXCLUSIONSAINn OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN RrDtlr.Fn BY PAID CLAIMS INSR L TYPE OFINSURANCE ADDL W6R GUBR WJn PODGY NUMBER POLICY EFF B POUtt EXP MMA LIMITS A GENERAL LIABILITY VCGPO19660 10/30/11 10130/12 EACH OCCURRENCE s 1,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE I A I OCCUR DAMAGE TO RENTED .+L_RFJNIBEB(Eeoeu uencel a 50,000 MED. EXP (Any one Person) y 5,000 PERSONAL B ADV INJURY 6 11000,000 GENERAL AGGREGATE S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPIOPAGG 5 2,000,000 I POLICY $ AUTOMOBILE -=L-1 _ UABUTY __._....a _ ___._ COMBINED SINGLE LIMIT (Ea accident) _ 6 ANYAUTO BODILY I NJURY(Per person) 6 ALL OWNED ALTOS SCHEOULEDAUTOS BODILY INJURY (Per a dlrrnl) $ PROPERTY DAMAGE HIREDAUTOS (Per accident) 6 $ _ NOMONMED AUTOS 6 uMBR. -A LIAB OCCUR EACH OCCURRENCE 6 EXCESS LAD ClA5L15iMAGE AGGREGATE 6 _� DEDUCTIBLE $ 6 RETENTION 6 WMIars COMPENSATIOM AND EMPLOYERS, LNBILTY Y!N MT PRWNETORNARTNER/E%ECUIWE OFFICERIMFA'9Dt aCUJDE I� p+eaerrop.IO mp "r;; N!A TO eYATrt oTn 6 E.L EACH ACCIDENT 5 EL DISEASE -EA EMPLOYEE 5 E.L. DISEASE -POUCY LIMIT $ sou. OE6cRIPnONOF OPEMnONfi edw. I DESCRIPTION OF OPERATIONS LOCATIONS !VEHICLES (Atmch ACORD 101, AdtllUOna1 Remarks Schedule, If more apace is mgvlmd) TEN DAY NOTICE OF CANCELLATION WILL BE GIVEN FOR NON PAYMENT OF PREMIUM. CITY OF NEWPORT BEACH, ITS OFFICERS, OFFICIALS, EMPLOYEES AND VOLUNTEERS NAMED AS ADDITIONAL INSURED PER FORM CG 20 10 10 01 ATTACHED. CERTIFICATE HOLDER CANCELLATION CITY OF NEWPORT BEACH 3300 NEWPORT BEACH BLVD P O Box 1768 NEWPORT BEACH CA 92658 Attention: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. The Ann Rn namO wnrl Innn a,w rnnlRfwroA Policy Number: VCGP019660 CG 2010 10 01 Insured Name:MIKE KILBRIDE LTD Number: 25 Effective Date: 10/3012011 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name of Person Or Organization: AS REQUIRED BY WRITTEN CONTRACT; COMMERCIAL PROJECTS ONLY, INCLUDING APARTMENTS (If no entry appears _above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. Section II — Who is An Insured is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured. B. With respect to the insurance afforded to these additional insureds, the following exclusion is added: 2. Exclusions This insurance does not apply to "bodily injury" or "property damage" occurring after; (1) All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed; or (2) That portion of `jour work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. CG 2010 10 01 Page 1 of I [KX:ii.Ci7�Tx ZKK3'1 SK P.O. BOX 420807, SAN FRANCISCO,CA 94142 -0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 10 -01 -2011 CITY OF NEWPORT BEACH SK ATTN: BUILDING DEPARTMENT 3300 NEWPORT BLVD NEWPORT BEACH CA 92663 -3916 GROUP: 000238 POLICY NUMBER: 0012920 -2011 CERTIFICATE ID: 137 CERTIFICATE EXPIRES: 10 -01 -2012 10- 01- 2011/10 -01 -2012 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. Authorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 10 -01 -2010 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER MIKE KILBRIDE, LTD. DBA: MICHAEL J. KILBRIDE, LTD DBA: COAST WATER AND POWER PO BOX 3341 NEWPORT BEACH CA 92659 1B14,SPI PRINTED : OS -03 -2012 (REV.8 -2010) POLICYHOLDER COPY SK P.O. BOX 420807, SAN FRANCISCO,CA 94142 -0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE; 10 -01 -2011 CITY OF NEWPORT BEACH SK ATTN: BUILDING DEPARTMENT 3300 NEWPORT BLVD NEWPORT BEACH CA 92663 -3816 GROUP: 000238 POLICY NUMBER: 0012920 -2011 CERTIFICATE ID: 137 CERTIFICATE EXPIRES: 10 -01 -2012 10- 01- 2011/10 -01 -2012 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. ('W/11as L� t horized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 10 -01 -2010 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER MIKE KILBRIDE, LTD. DBA: MICHAEL J. KILBRIDE, LTD DBA`. COAST WATER AND POWER PO BOX 3341 NEWPORT BEACH CA 92659 [B14,SPI PRINTED : 05 -03 -2012 IREV.8-20101 ON -CALL VESSEL PUMPOUT FACILITY MAINTENANCE AND REPAIR SERVICES AGREEMENT WITH MIKE KILBRIDE, LTD. THIS AGREEMENT is made and entered into as of this 5r'day of / ti r1 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City "), and MIKE KILBRIDE, LTD., a California Corporation, whose principal place of business is 20272 Placentia Ave., COSTA MESA, CA 92626 ( "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 has a need for on -call assistance for vessel pumpout facility maintenance and repair. C. City desires to engage Contractor to conduct quarterly inspections and maintenance, and on -call repair for city-owned vessel pumpout stations. ( "Project'). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified 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 be for a period of two (2) years, and shall commence on the above written date, and shall terminate on the 31st day of January 2012, unless terminated earlier as set forth herein. 2. SCOPE OF SERVICES Contractor shall provide "On -Call" quarterly inspections and maintenance, and on -call maintenance for city-owned vessel pumpout stations services as described in the Scope of Services attached hereto as Exhibit A and incorporated herein by this reference. As a material inducement to the City entering into 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. 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; and 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. �- .✓any >.�� - -� ...................... 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, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Contractor's total compensation for services performed during the term of the agreement shall not exceed Thirty Thousand Dollars and No Cents ($30,000.00). 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. Contractors 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. 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. WORK DEFICIENCIES AND CORRECTIONS 5.1 The Contractor's performance will be evaluated on a regular basis. When problems are identified, the City will notify Contractor. If issues are serious or go unresolved, a Notice of Deficiency will be issued to Contractor in writing. This notice will detail the issues and give a cure period to resolve them. 5.2 Failure to correct the deficiencies listed in the Notice of Deficiency within the timeframe specified by the City may, in the City's sole discretion, result in action being taken by the City, including, but not limited to, (a) withholding payment for the subject deficiency until the work is completed; (b) correcting the deficiency (using the City's own work force and /or by contracting out) and deducting any associated costs plus overhead incurred thereby from the total monthly compensation due the Contractor; (c) contracting with another Vendor to perform the maintenance and other services required for the remainder of the term of the Contract; (e) terminating the agreement; and /or (f) taking any other action and exercising any other legal remedy available to the City under law. 6. ADMINISTRATION This Agreement will be administered by the Harbor Resources Division. Chris Miller 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. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 7.1 Contractor shall use only the standard materials described in Exhibit A in performing services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed unless approved in advance by the City Administrator. 7.2 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 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. 8. RESPONSIBILITY FOR DAMAGES OR INJURY 8.1 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 workers. 8.2 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 supplier selected by the Contractor. 8.3 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 attomeys' 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, ifs officers or employees. 8.4 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. 8.5 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. 8.6 Nothing in this section shall be construed as authorizing any award of attorneys fees in any action to enforce the terms of this Agreement, except to the extent provided in Section 8.3 above. 8.7 The rights and obligations set forth in this Section shall survive the termination of this Contract. 9. INDEPENDENT CONTRACTOR On -Call Services Agreement Page 5 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. 10. 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. 11. INSURANCE Without limiting Contractors 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 or performance of any work. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. 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 Reguirements. i. 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 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 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: L 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. 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 Contract. 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. 12. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under the Agreement shall be paid to all workmen employed on the work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 13. 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 shall be permitted only with the express written consent of City. Contractor On -Call Services Agreement Page 8 shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 14. 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 Contract. 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. 15. 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 Contract, 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 Contract by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 16. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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: Chris Miller Harbor Resources Division City of Newport Beach 829 Harbor Island Drive Newport Beach, CA 92660 Phone: 949 - 644 -3043 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: On -Call Services Agreement Page 9 Attention: Mike Kilbride Mike Kilbride, Ltd. P.O. Box 3341 Newport Beach, Ca 92659 Phone: (949) 548 -0106 Fax: (949) 548 -1616 17. 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, the non - defaulting parry 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. 18. 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. 19. 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. 20. INTEGRATED AGREEMENT 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. On -Call Services Agreement Page 10 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 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 l �fl Leonie H. Mulvihill Assistant City Attorney ATTEST• go r D(� - 3N Leilani X I. Brown City Clerk Attachment CITY OF NEWPORT BEACH, A Municipal Corporation By. Chris Miller Harbor Resources Manager CONTRACTOR: MIKE KILBRIDE, LTD. By: ICrA�A�U Name:i Title: Name: Title: Exhibit A — Scope of Services & Billing Rates On -Call Services Agreement Page 12 EXHIBIT A MIKE KILBRIDE, LTD. General Building & Engineering Contractors License 738400 P.O. Box 3341 Newport Beach, CA 92659 -8341 (949) 548 -0106 • Fax (949) 548 -1616 Shannon Levin Harbor Resources Fax(949)723 -0589 Re: City Pump Outs Shannon: We write to amplify the service our company provides to the City's pump outs. During the past four (4) years & continuing, we: 1. Perform four service calls per year for each City pump. All pump components are checked for wear & condition. Hour meter is recorded and a vacuum gauge tests the pump. We charge the City $300 for all five City pumps for each occasion and $1,200. total per year. 2. We are "On Call ": with the City to repair pumps as is necessary. We inventory all parts necessary to rebuild an entire pump assembly. 3. Our primary technician is Roger Wolsky. Mike Kilbride trained Roger and is our substitute tech. Mike Kilbride was trained by a factory technician sent by the manufacturer. 4. For service calls, we charge $65 per hour, including travel time & charge the City at our cost for replacement parts. If we may further elaborate on our pump out service to the City, please do not hesitate to call. Thank you, Mike Kilbride