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HomeMy WebLinkAboutC-4597 - On-Call Sea Lion Abatement Services AgreementAMENDMENT NO. ONE TO ON -CALL SEA LION ABATEMENT SERVICES AGREEMENT WITH COPPERTOP ENTERPRISES, INC. THIS AMENDMENT NO. ONE TO ON -CALL SEA LION ABATEMENT SERVICES AGREEMENT ( "Amendment No. One "), is entered into as of this Z day Of , 2011, by and between the CITY OF NEWPORT BEACH, a California-Municipal Corporation ( "City "), and COPPERTOP ENTERPRISES, INC., a California Corporation whose address is 2302 S. Susan Street, Santa Ana, California 92704 ( "Contractor "), and is made with reference to the following: RECITALS: A. On August 6, 2010, City and Contractor entered into an On -Call Services Agreement ( "Agreement ") for on -call sea lion abatement services for the seasonal sea lion population in Newport Harbor ( "Project "). B. City desires to enter into this Amendment No. One to extend the term of the Agreement to June 30, 2012, increase the total compensation and update insurance requirements. C. 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: 1. TERM Section 1 of the Agreement, shall be amended in its entirety and replaced with the following: The term of the Agreement shall terminate on June 30, 2013, unless terminated earlier as provided for in Agreement. 2. SERVICES TO BE PERFORMED Section 2 of the Agreement, shall be amended to include the Scope of Services dated June 7, 2011, which is attached hereto as Exhibit 'A' and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. COMPENSATION The introductory paragraphs to Section 4 of the Agreement shall be amended in their entirety and replaced with the following: 3.1 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 here to as Exhibit B and incorporated herein by reference. 3.2 No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Contractor's compensation for Services performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Total compensation paid to Contractor during the term of this Agreement shall not exceed Sixty Thousand Dollars and 00/100 ($60,000) without written amendment to the Agreement as amended. 4. INSURANCE 4.1 Section 11 of the Agreement shall be amended in its entirety and replaced with the following: Without limiting Contractor's indemnification of City, and rip or 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. 4.2 Coverage and Limit Requirements. 4.2.1 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. 4.2.2 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. 4.2.3 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. 4.2.4 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. 4.3 Other Insurance Provisions or Requirements. 4.3.1 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. 4.3.2 General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 4.3.2.1 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. 4.3.2.2 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. 4.3.2.3 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. 4.4 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.. 4.5 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. 4.6 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. 4.7 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. 4.8 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. 4.9 Enforcement of Contract 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. 4.10 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. 4.11 City'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. 4.12 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. 4.13 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. 5. 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 hereto have executed this Amendment No. One on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: i A! q . By: -'KV i Leonie Mu Assistant City Attorney ATTEST: Date: By Lei Cit Att CITY OF NEWPORT BEACH, A California/ m�nicipal corporation S -tepnen vitsaoum Public Works Director CONTRACTOR:COPPERTOP ENTERPRISES, INC., a California Corporateppn Date:T7 JI1 By:" Zn- Debbie Williams President and Treasurer be Performed Exhibit B - Schedule of Billing Rates EXHIBIT A CQPP INTIR P R I$IS INC. LIC 838125 June 7, 2011 City of Newport Beach HARBOR RESOURCES 3300 Newport Boulevard Newport Beach, CA 92660 Attention: Ms. Shannon Levin Contract On -Call Sea Lion Abatement Services Agreement Regarding: Construction Services Proposal Dear Shannon: CopperTop Enterprises, Inc. is pleased to present our proposal for the Sea Lion Abatement Services Agreement for the period of July 1, 2011 thru June 30, 2012. Please reference the following attachments: 1) Exhibit A —Scope of Work 2) Exhibit B- Schedule of Billing Rates Should you have any questions or need any further information, please do not hesitate to contact us. Thank you for this opportunity to provide our construction services for the City of Newport Beach. Sincerely, Deborah Williams President CopperTop Enterprises, Inc. 2302 S SUSAN STREET, BANTA ANA, CA 92704 • 714 - 545 -4814 - 800 - 361 -8139 - 714 - 545- 4838FAX z COPPEWibp 6W TER PR Is HS rmc, EXHIBIT A SCOPE OF WORK 1) Conduct on the water abatement using 16' power boat. 2) Install high pressure pump, mounted water cannon and spotlight. 3) Disband sea lions on vessels and docks using water cannon. 4) Herd sea lions out of Newport Harbor. 5) Equip personnel in vessel with all Coast Guard required life saving and fire fighting equipment, including hard hat, personal floatation devices and cell phone. 6) Communicate with Harbor Resources regarding problem areas, tactics and progress. 7) Abatement shall be conducted by one man unless otherwise approved by Harbor Resources. 8) Provide Harbor Resources with daily update of the previous day's activities. 9) Proactively respond to homeowners concerns. 10) Maintain accurate insurance and liability provisions, City Business license and other applicable licenses and certificates. 11) Submit monthly invoices to the City of Newport Beach. 12) Vessel to be moored at J811 and not docked at a residence. 13) This agreement allows for up to 45 days/nights of business, at a rate of $60.00 per hour and is not to exceed the amount of $30,000 during the term of this contract. 14) Any supplemental work or techniques must be approved by Harbor Resources, in writing, prior to proceeding with work. 2302 S SUSAN STREET, SANTA ANA, CA 92704 . 714 -545 -4814 ^ 800- 361 -8139 • 714 - 545- 4838FAX C®PH E H}® e RT6R PR ISEi IRC. EXHIBIT B SCHEDULE OF BILLING RATES Description Cost Boat with trained, one man crew $60 p/h 2302 S SUSAN STREET, SANTA ANA, CA 92704 - 714 -545 -4814 • 800- 361 -8139 • 714 - 545- 4838FAX CERTIFICATE OF LIABILITY INSURANCE DATE (MMIOWYYYY) ��- - -- -- —. . - --- -- _ _ 07/07111 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY ANO CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of Such endorsement(s). PRODUCER NMC Insurance Services P.O. Box 2159 Laguna Hills, CA 92653 Phone (949)206 -0929 INSURED Copper-Top Enterprises, Inc. 2302 S. Susan Street Santa Ana. Ca 92704- Fax (949)916 -9929 CERTIFICATE NUMBER: NSURER D; INSURERLSj AFFORDING COVERAGE — Mt Hawley Insurance Company REVISION - NAIC.C- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR—- - - - - - A O SUB POLICT�- POLICY P -_ -- LTR TYPE OF INSURANCE INSR_IYV,DI POLICY NUMBER_ MMIDDIYYYY (MMrWry YYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE S 1.000.000 C� COMMERCIALGENERALLIABILITY _PREMJSES Eaompnence)_J.$ , 50,000 A ❑ ❑ CLAIMS -MAOE IJ OCCUR ❑ MGL0173372 05/01/2011 0$101 /2012 MED F_%P (Any one person) S 5,00D PERSONAL B ADV INJURY S 1,000,000 - - - -- ❑ GENERAL AGGREGATE $ 2,000,000 AGGREGATE LIMIT APPLIES PER. _ PRODUCTS - COMPfOP AGG � $ 2,000,000 0%1 POLICY LJ POLICY ❑ JEC ❑ LOG S - AUTOMOBILE LIABILITY I COMBINED SINGLE LIMIT (Ea accident) $ ❑ ANY AUTO BODILY INJURY (Per person) S ❑ALL OWNED AUTOS �1 LJ SCHEDULED AUTOS ❑ HIRED AUTOS I BODILY INJURY (Per accident) S PROPERTY DAMAGE (Per necid, S ❑ NON -OWNED AUTOS I $ ❑ $ ❑ UMBRELLALIAB ❑ OCCUR I EACH OCCURRENCE AGGREGATE _E S ❑ EXCESS LIAR CLAIMS -MADE ❑ DEDUCTIBLE S $ RETENTION S C WORKERS COMPENSATION AND EMPLOYERS LIABILITY OFFICER /MEIMBERIXRTNERJ?ECUi1VE YIN NIA 1719000698 06101/2011 06/01/2012 WC SrATU. oTH. L ER SEE ATTACHED EL FACH ACCIDENT 3 1,000,000 E.L DISEASE - FA EMPLOYE S 1,000,000 (Mandebry In NH) II yes, describe under DE SGRIPIION OF OPERATIONS bel. E.L. DISEASE - POLICY LIMB $ 1,000,000 Ij I _ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Atmch ACORD 101, Additional Remaries Schedule, if more space Is required) The City Of Newport Beach, its elected or appointed officers, agents, Officials, employees and volunteers are named additional insured per the attached endorsement as required by contract CERTIFICATE HOLDER CANCELLATION City of Newport Beach Public Works Department 3300 Newport Blvd Newport Beach, Ca 92658 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE All rinhfe roccnrnd ACORD 25 (2009109) OF The ACORD name and logo are registered marks of ACORD Policy Number: MGLO173372 Mt. Hawley Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED m OWNERS, LESSEES OR CONTRACTORS (FORM C) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART (If no entry appears below, information required to complete this endorsement will be shown in the Declarations as appli- cable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Sched- ule, but only with respect to liability arising out of "your work" for that insured by or for you. To the extent required under contract, this policy will apply as primary insurance to additional insureds scheduled below and other insurance which may be available to such additional insureds will be non - contributory. Section IV., Condition 4., of this policy is amended accordingly. SCHEDULE Name of Person or Organization: All persons or organizations where required by written contract. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. CGL 216 (04/98) Page 1 of 1 Insured CERTHOLDER COPY SP P.O. BOX 420807, SAN FRANCISCO,CA 94142-0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 07 -07 -2011 CITY OF NEWPORT BCH SP PUBLIC WORKS DEPT PO .BOX 1768 NEWPORT BEACH CA 92658 -8915 GROUP: 000719 POLICY NUMBER: 0000698 -2010 CERTIFICATE ID: 31 CERTIFICATE EXPIRES: 06 -01 -2012 06 -01- 2011/06 -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. l ' wDil[rd L 6A"uth Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 06 -01 -2011 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. ENDORSEMENT #2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2011 -07 -07 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. THIRD PARTY NAME: CITY OF NEWPORT BCH EMPLOYER COPPERTOP ENTERPRISES INC SP 2302 S SUSAN ST SANTA ANA CA 92704 [B11,SGI PRINTED : 07 -07 -2011 (REV.9 -2010) Policy Number: MGLO173372 Mt. Hawley Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Person Or Organization: All persons or organizations where required by written contract. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as appli- cable 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 included in the "productscompleted 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 Insured Policy Number: MGLO173372 COMMON POLICY CONDITIONS All Coverage Parts included in this policy are subject to the following conditions. A. Cancellation 1. The first Named Insured shown in the Declara- tions may cancel this policy by mailing or deliver- ing to us advance written notice of cancellation. 2. We may cancel this policy by mailing or delivering to the first Named Insured written notice of can- cellation at least: a. 10 days before the effective date of cancella- tion if we cancel for nonpayment of premium; or b. 30 days before the effective date of cancella- tion if we cancel for any other reason. 3. We will mail or deliver our notice to the first Named Insured's last mailing address known to us. 4. Notice of cancellation will state the effective date of cancellation. The policy period will end on that date. 5. If this policy is cancelled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata. The cancellation will be effective even if we have not made or offered a refund. 6. If notice is mailed, proof of mailing will be suffi- cient proof of notice. B. Changes This policy contains all the agreements between you and us concerning the insurance afforded. The first Named Insured shown in the Declarations is author- ized to make changes in the terms of this policy with our consent. This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy. Mt. Hawley Insurance Company C. Examination Of Your Books And Records We may examine and audit your books and records as they relate to this policy at any time during the poli- cy period and up to three years afterward. D. Inspections And Surveys 1. We have the right to: a. Make inspections and surveys at any time; b. Give you reports on the conditions we find, and c. Recommend changes 2. We are not obligated to make any inspections, surveys, reports or recommendations and any such actions we do undertake relate only to insur- ability and the premiums to be charged. We do not make safety inspections. We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. And we do not warrant that conditions: a. Are safe or healthful: or b. Comply with laws, regulations, codes or standards. 3. Paragraphs 1. and 2. of this condition apply not only to us, but also to any rating, advisory, rate service or similar organization which makes insur- ance inspections, surveys, reports or recommen- dations. 4. Paragraph 2. of this condition does not apply to any inspections, surveys, reports or recommenda- tions we may make relative to certification, under state or municipal statutes, ordinances or regula- tions, of boilers, pressure vessels or elevators. IL 00 17 11 98 Copyright, Insurance Services Office, Inc., 1998 Page 1 of 2 Insured A @' CERTIFICATE OF LIABILITY INSURANCE � 06/24 /2011VVY) 06/24/2011 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: If the certificate holder is an ADDITIONAL INSURED, the poli" y(ies) 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). DAMAGE O NT 0 PREMISES IF, occurrence) PRODUCER MED EXP (Any one ,nun) CONTACT NAME: USAA INSURANCE AGENCY INC 9800 FREDERICKSBURG RD SAN ANTONIO, TX 782680001 (888) 661 -3938 $ Z2NE FAX -'— E MILO. Eatl: (686) 661 -3938 (AIC. No): 16792 5526091 ADDRESS: Service.cenler Iravelers.com PRODUCER CUSTDMER ID. R: 6699X3156 X9916 862 GEN'L AGGREGATE LIMIT APPLIES PER. PRO 17POLICY JECT LOC INSURERISI AFFORDING COVERAGE NAICA INSURED INSURER ATRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA COPPERTOP ENTERPRISES INC AUTOM061LE LIABILITY ANY AUTO ALL OWNED AUTOS HIR ED AUTOS 1xx SCII EDULED AUTOS NON -OWNED AUTOS INSURER 2302 S SUSAN ST SA- 2A188112 -11 INSURER C: " SANTA ANA, CA 92704 COMBINED SINGLE LIMIT (EA accideni) - - -- -� INSURER 0: BODILY INJURY (Pen Ue,son) $ BODILY I NJUR Y(PeraccldenC INSURER F. PROPERTY DAMAGE (Per 3cddenn $ COVERAGES CERTIFICATE NUMBER: 277748912211571 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 ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE GENERAL LIABIITY COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR ADDL INSR SUER yJ] _ POLICY NUMBER POLICY EFF fMMIDDIYYYY)_ POLICY EXP (MMI00/YVYY LIMITS EACH OCCURRENCE $ DAMAGE O NT 0 PREMISES IF, occurrence) $ MED EXP (Any one ,nun) $ PERSONAL 8 ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER. PRO 17POLICY JECT LOC PRODUCTS - COMPIOP AGG $ $ A AUTOM061LE LIABILITY ANY AUTO ALL OWNED AUTOS HIR ED AUTOS 1xx SCII EDULED AUTOS NON -OWNED AUTOS SA- 2A188112 -11 0$/24/2011 05/24/2012 COMBINED SINGLE LIMIT (EA accideni) $1 000,000 BODILY INJURY (Pen Ue,son) $ BODILY I NJUR Y(PeraccldenC $ PROPERTY DAMAGE (Per 3cddenn $ $ UMBRELLA LIAB EXCESS LIAR OCCUR CLAIMS-MADE EACH OCCURRENCE $ AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNEWEXECUTIVE ❑ OFFICERIMEMBER EXCLUDED? (Mandatory in NH) If yyes. describe under BP ECIAL PROVISIONS below NIA WC STATU OTH WC ST MITS ER E.L. EACH ACCIDENT $ El DISEASL EA EMPLOYEE $ E.L. DISEABE -POLICY LII.IIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ARach ACORD 101, Additional Remorhs Schedule, it more space is required) COPPERTOP ENTERPRISES INC 2302 S SUSAN ST SANTA ANA, CA 92707 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE p 1988 -2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received 718/2011 Dept. /Contact Received From: Shai.ina 0} ter Date Completed: 7;12/201 1 Sent to: Company /Person required to have certificate: Joel 0 Copper Top I. GENERAL LIABILITY A. INSURANCE COMPANY: Mi Hawley B. AM BEST RATING (A-: VII or greater): A +: X C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? Yes No FX D. LIMITS (Must be $1M or greater): What is limit provided? $2,000,000 E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers) Yes No O F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? Yes No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? Yes No H. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? Yes O No F7X I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. New Acord Wording II. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Travelers Casually & Sureiy 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 $110 min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What are the limits provided? $1.000,000 E. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): _ Is it included? NIA Yes No I F. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. New Acord Wording. III. WORKERS' COMPENSATION A. INSURANCE COMPANY: State Fund B. AM BEST RATING (A-: VII or greater): Not Rated C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? u Yes aX NOD HAVE ALL ABOVE REQUIREMENTS BEEN MET? Yes aX No IF NO WHICH ITEMS NEED TO BE COMPLETED? NOTES: Necds Risk A9ane et-a 0rorr+l ror tort- rrtDnitted GL carrier Approved: .lulV 13. 20II L Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach Requires approval /exception /waiver by Risk Management B &B initials Comments: Approved: Risk Management * Subject to the terms of the contract. Date N ON -CALL SEA LION ABATEMENT SERVICES AGREEMENT WITH COPPERTOP ENTERPRISES, INC., DBA SOUTH MOORING COMPANY THIS AGREEMENT is made and entered into as of this day of 2010, by and between the CITY OF NEWPORT BEACH, a California Municip' Corporation and Charter City ( "City "), and COPPERTOP ENTERPRISES, INC, a California Corporation, whose principal place of business is 2302 S. Susan Street, Santa Ana 92704 ( "Contractor "), and who is doing business as south mooring company, 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 sea lion abatement services for the seasonal sea lion population in Newport Harbor. C. City desires to engage Contractor to patrol waters of Newport Harbor and abate sea lion nuisances ( "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 commence on the above written date, and shall terminate on the 30th day of June 2011, unless terminated earlier as set forth herein. 2. SCOPE OF SERVICES Contractor shall provide "On -Call" sea lion abatement services as described in the Scope of Services attached hereto as Exhibit 'A' and incorporated herein by this reference (the "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. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, equipment and all utility and transportation services necessary for the Project. Upon verbal or written request from the City's Project Administrator (as defined in Section 6 below), 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 authorization to proceed with the Services as described in the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the Work described 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. On -Call Services Agreement Page 2 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 V 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) without prior written authorization. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Services Agreement. 4.1 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's invoices 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'. On -Call Services Agreement Page 3 5. WORK DEFICIENCIES AND CORRECTIONS 5.1 The Contractor's performance will be evaluated on a regular basis. When problems are identified, the Project Administrator 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. Harbor 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 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 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. 8. RESPONSIBILITY FOR DAMAGES OR INJURY On -Call Services Agreement Page 4 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 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, 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, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 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 Work. On -Call Services Agreement Page 5 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 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 9. 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. 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 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 billing rates. 1. Coverage and Limit Requirements. a. 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. On -Call Services Agreement Page 6 b. 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. c. 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. d. Builders Risk. For 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. 2. Other Insurance Provisions or Requirements 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 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 anytime. On -Call Services Agreement Page 7 b. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: L 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. ii. 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. iii. 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 insurers liability. 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. 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 builders risk insurance. The builders 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 ten (10) days notice is required. e. 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 On -Call Services Agreement Page 8 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. f. 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. g. 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. h. Enforcement of Contract 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. i. 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. City'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. k. 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. On -Call Services Agreement Page 9 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. 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 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 On -Call Services Agreement Page 10 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: Shannon Levin Harbor Resources Division City of Newport Beach 829 Harbor Island Drive Newport Beach, CA 92660 Phone: 949 - 644 -3041 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Chuck South Coppertop Enterprises, Inc. 2302 S. Susan Street Santa Ana, Ca 92704 Phone: 949 - 645 -0334 17. TERMINATION On -Call Services Agreement Page 11 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 party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Agreement. 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. 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. On -Call Services Agreement Page 12 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 Proposal for On -Call Services 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. On -Call Services Agreement Page 13 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 Leonie Mulvihill Assistant City Attorney U-1-111*19 Leilani I. Brown City Clerk Attachments P0 CITY OF NEWPORT BEACH, A Municipal Corporation By: Davi iff City Manager CONTRACTOR:COPPERTOP ENTERPRISES By. _ Name. Debbie Williams Title: President Exhibit A — Scope of Services Exhibit B — Billing Rates On -Call Services Agreement Page 14 EXHIBIT A SCOPE OF WORK 1. Conduct on the water abatement using 16 foot power boat. 2. Install high pressure pump, mounted water cannon, and spotlight. 3. Disband sea lions on vessels and docks using water cannon. 4. Herd sea lions out of Newport Harbor. 5. Equip personnel in vessel with all Coast Guard required life saving and firefighting equipment including hard hat, personal floatation devices, and cell phone. 6. Communicate with Harbor Resources regarding problem areas, tactics, and progress. 7. Abatement shall be conducted by one man unless otherwise approved by Harbor Resources. 8. Provide Harbor Resources with daily update of the previous day's activity. 9. Proactively respond to homeowner concerns. 10. Maintain accurate insurance and liability provisions, City Business License and other applicable licenses and certificates. 11. Berth vessel at 2703 W. Coast Hwy, Newport Beach 92663. Vessel may not berth at residential dock. 12. Submit monthly invoices to the City of Newport Beach. 13. This agreement allows for up to 45 days /nights of business at a rate of $50 per hour and not to exceed the amount of $14,000 during the term of this contract. 14. Any supplemental work or techniques must be approved by Harbor Resources, EXHIBIT B Page B -1 EXHIBIT B SCHEDULE OF BILLING RATES Description Cost Boat with trained, one man crew $50 /hr On -Call Services Agreement Page 2 South A4eooeiraag Company (949) 645 -0334 • P.O. Box 528 • Newport Beach, CA 92661 ablesouth(ayahoo.com wwwsouthmooring.com March 24, 2010 Harbor Resources Attu. Shannon Levin 829 Harbor Island Drive Newport Beach, CA 92660 2010 -2011 Sea Lion Abatement Operation Harbor Resources and I have operated the sea lion abatement program in Newport Harbor for 2008 -2009 with success and no complaints from home owners or boaters about the operation. I use a specially equipped 16 ft power boat with a generator for a very bright spotlight, and a high pressure pump with a mounted water cannon. The idea behind my approach is to disband the sea lions, without endangering them, when they congregate and keep them spread out. It's really noise abatement if the males are kept separated they don't compete for females, and are relatively quiet. I have also experimented with herding them out of the harbor with success and believe that in the future as the sea lion population increases (50,000 to 70,000 per year), we will be able to manage the problem by increasing the length of the patrol time and the addition of more effective deterrent tools approved by the Fish and Game and National Fisheries. The cost of the boat and a trained one man crew is $50.00 per hour. This includes: Docking, maintenance, and repairs to boat and equipment Fuel for the boat, generator, and pump $1,000,000.00 liability insurance H & L insurance State workers compensation insurance City business license Boat is equipped with all Coast Guard required Iife saving and fire fighting equipment, including hard hat, personal flotation devices, and cell phone. South Mooring Company (949) 645 -0334 • P.O. Box 528 • Newport Beach, CA 97665 ableSOLIth@yahoo.com www.so uthmoo r in g.corn Harbor patrol has operators phone number, 1 also check in with the Harbor Patrol before each patrol begins in case they have any calls from residents or boat owners with questions or to report any problem spots in the harbor. I daily report to Harbor Resources our findings from the previous night and the number of sea lions spotted in the harbor, problem boats, and docks, concerns from homeowners, and places of most concern. Enclosed Copy of liability insurance Copy of State Workers Compensation insurance Copy of City business license ASSIGNMENT This assignment (" Assignment") dated December 1, 2009 (the `Effective Date'), is entered into by and between Able & South LLC ( "Ass, ignor'), a California limited liability company, and CopperTop Enterprises, Inc. ( "Assignee'% a California corporation. WHEREAS Assignor and Assignee are Parties to that certain asset purchase agreement dated as of December 1, 2009, by and among Assignor, Assignee and Chuck South, the founder and sole member of Assignor (the "Purchase Agreement'D, pursuant to which Assignee has purchased certain business assets of Assignor (the "Purchased Assets "); and WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to sell, convey, assign, transfer and deliver to Assignee the Purchased Assets, and Assignee has agreed to purchase, acquire and take assignment and delivery from Assignee of the Purchased Assets. *IOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged., Assignor and Assignee hereby agree as follows: 1. All capitalized terms used in this Assignment and not defined herein shall have the respective meanings ascribed to them in the Purchase Agreement. 2. Assignor hereby sells, assigns, transfers, conveys and sets over to Assignee and its successors and assigns, all of Assignor's rights, title, benefits, privileges and interests in and to the Purchased Assets. 3. Except as set forth herein or in the Purchase Agreement, Assignee does not assume any liabilities of Assignor, and Assignor agrees that all such liabilities of Assignor shall remain the sole responsibility of Assignor. 4. Each of the Parties hereto covenants and agrees that it will, at the request of the other Party, and without further consideration, promptly execute and deliver, and cause its employees to execute and deliver, such other instruments of sale, transfer and assignment and to promptly take such other action as such other Party may reasonably request to more effectively consummate the assignment contemplated herein. 5. To the extent that any Purchased Asset shall be non - assignable, this Assignment shall not constitute any assignment thereof, and to the extent that any Purchased Asset shall require the consent of the other party or parties thereto, this Assignment shall not constitute an assigtunem of the same until such consent has been obtained, if an assignment or attempted assignment without such consent of said other party would constitute a breach thereof or in any way adversety affect the rights, powers, privileges, or liabilities of Assignor or Assignee thereunder. 6. Each of Assignor and Assignee, by executing this Assignment, hereby acknowledges and agrees that neither the representations and warranties nor the rights and remedies of any Party under the Purchase Agreement shall be deemed to be enlarged, negated, modified or altered in any way by this Assignment. As o=Ma! 12oL09.doc -1- 7. The provisions of this Assignment are intended to be binding upon Assignor and Assignee and their respective successors and assigns. 8. Nothing in this Assignment, express or implied, is intended or shall be construed to confer upon any person; firm or corporation, other than Assignor and Assignee and their respecrive successors and assigns, any remedy or claim. 9. This Assignment (including any claim or controversy arising out of or relating to this Assignment) shall be. governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles that would result in the application of any law other than the laws of the State of California. _ .., _ _ WHEREOF,.Assign9r and Assignee have caused this Anent to be duly executed as of and on the date first above written. ABLE & SOUTH LLC By: Name: Chuck South Title: Managing Member COPPERTOP ENTERPRISES, INC. By: olk Name: Deborah L. Williams Title: President A »igm 12.0I.09.dm -2- TOM DALY CLERK - RECORDER 12 CMC CENTER PLAZA, ROOM 106 POST OFFICE BOX 238 SANTA ANA, CA 92702 -0238 FICTITIOUS BUSINESS NAME STATEMENT snun oveenwm sa rweel mms ellR1uPCC AR• These fees apply at time of filing: Fling fee $23.00 for one business name. $7.00 for each add nW business name $7.00 for each additional partner after final two Please Provide a self - addressed, stamped, return envelope if mailed. ..' -- 7. politicos Business Names) South Mooing Co Business Phone Na 1A x New Sfatemerd ❑Refife -fist previous Nm Change Street Address. CNy 8 State of Prino pal place of Business City State Cade County 2. (Do notuse P.O. box Of P.M.B.) 2302 S Susan St Santa Ana, CA 92707, ORANGE Full name of Registered Owner (N Corporation, enter corporation name) if Corporation! LLC 3. State of Incorporation' Coppeerop Enterprises Inc worganizatton CA Res.! Corp. Address (tin NOT use a P.O. Box or P.M.B) City $"a Zip Cade 2302 S Susan St Santa Ana CA 92707E DAILY Pt T Publication �Ut 12 U County Cleric Fey 1 Late I a -R - n ci (CHECK ONE ONLY) This business is conducted by: a trust a state or local registered domestic partnership 4. ❑ an eldiridual ❑ a general partnership ❑ a limited partnership ❑ an unlncorporate0 association other than a partnership EDa coporation a Limited Liability Partnership 0 co- partners M a husband and wife a Joint venture Limited Liability Co. Have you staled doNrg business yet? Nance: This Fetfiaa Business Name statement wires We years Nom No dam hwas tiled in are office of the CoM Clerk-Recorder . The uWarneM expires 40 days after any change in Ow fad's made oasr den ❑ Yes Insert Date: a change m No residences address of the regisled caner. A rew FI<titous eushn Name statement moat be aed before either expkatbn When cessbp to transaG buMk under an active Fcf. Busies Nara statemaa. AbaWOnmem s00 be (Mil The 17ir® of NUS stawnaR does rot of itself Whenzs the use 5. a No mthia state ofa FC6Naus BUSb¢ss Namein vkRetbn of NO rBtas of anoNOrue rfadera,s�acammn law (see ettam 14611 et teq., 9usiness mtd Pmfassiors Cab). if ere registered owner is NOT a corporation, sign below: If the registered owner is: (See instructions on the reverse side of this form) a corporak»n, an officer of the corporation signs below. any type of parme slap, the general partnersigrms below. B a limited liability company, a manager o an officer signs; below. CopperTop Enterprises Inc Si"ure: unit Companradion/Parfnership Name (Type or Print Name) Signature and T-dle of Officer/Manager or General Partner I declare that all information in this statement is true and correct. I declare that all information in this statement is true and correct (A Registered owner who declares as tear information which he o (A Registered owner who declares as true information which he or she knows to be fake Is gidRy of a crime.) she knows to be faire is guilty of a crime.) Deborah Williams Owner Signature and Title of Officer/Manager or General Partner These fees apply at time of filing: Fling fee $23.00 for one business name. $7.00 for each add nW business name $7.00 for each additional partner after final two Please Provide a self - addressed, stamped, return envelope if mailed. 1, C been c which and co SncGit,to 110M LG-tnv (MV 403) W. t69 7 2548092 SECRETARY OF STATE !vin Shelley, Secretary of State of the State of 1a, hereby certify: the attached transcript of .._ ._ page(s) has mpared with the record on file in this office, of purports to be a copy, and that it is full, true -ect. IN WITNESS WHEREOF, ! execute this certificate anct aff +x the Great Seat of the State of California this clay of AUG 1 5 2003 A.-It- "47 Secretary of St71t( G 11 •ouI 1N3 d0a '4a4do0 2d BEBbSbSbiL dST:EO 01 El inc Thu name ARTICLES OF INCORPORATION Article I : corporation is: Church Expansion Management, Inc. Article lI 2518092 ENDORSED - FILED In ;he office of the Secretary of State Of the State of CatiforrJa AUG 1 1 2003 KEVIN SHELLEY Secretary of State The purpose o the corporation is to engage in any lawful act or activity for which a corporation may he organi• •d under the 3rneral Corporation Law of California oilier than the banking business, the st company business or the practice of a profession pcanitted to be incorporated by the Califorr a Corporations Code. Article III This eorporatis is authorized to issue only one class of shares of stock; and the total number of shares which corporation is authorized to issue is two thousand (3,000). I'Ftc name in Business The liability fullest extent Business Fi Nu Article IV State of California of this corporation's initial agi.nt f,.r service of process is: Incorporate .. Article V directors of the corporation for monetary damages t. 'tall be eliminated to the ssible unticr California law. Incorporated, Incorporator E - d BCBbSbSbtL 'OuI 11,13 dozsad4o0 cIS1:tE0 01 61 InC ACTION OF SOLE INCORPORATOR OF Church Expansion Management, Inc. The undersi: ,red, being the Sole incorporator of Church Expansion Management, Inc., a California C oration (the "Corporation "), does hereby appruvc and adopt the following resolutions i accordance with Section 210 of the California Corporation Code: Election of Directors VIED, that the following persons are hereby elected as the directors of the ttion to serve until the first annual meeting of shareholders or until their irs are duty elected and qualified: Williams, ; 454 Federal Ave., Costa Mesa, Califonai4 92627 The undersized, upon completion of this Action of incorporator, shall have no further responslbilif s or obligations to the Corporations in his capacity as sole incorporator. Dated: r III si corporaied, Incorporator Mark Schiff„ V +' •d Be8*9VSblL oul 1N3 doz.aaddaO dS1:60 Ol el LAC I1.. . RESOLUTIONS ADOPTED BY INCORPORATOR OF CHURCH EXPANSION MANAGEMENT, ,NC, The un ersigned, being the sole Incorporator of the Corporation, hereby adapts the following reso ions: Dated: (1) ESOLVED, that a copy °of the Certificate of Incorporation of the i por atutor tion, together with the original receipt showing payment of the tutory organization tax and filing fee, be inserted in the Minute Book of the (2) I*SOLVED, that the form of First By -Laws submitted to the meeting be, and e same hereby are, adopted as and for the By -Laws of the Corporation, d that a copy !hereof be placed in the Minute Book of the Corporation, ectly following Certificate of Incorporation. (3) SOLVED, that the following persons be, and they hereby are, elected as rectors of the Corporation, to serve until the first annual meeting of the I areholders, and until their successors are elected and qualify: Deborah L. Williams I ber 23, ;2043 Incorporator S'd acabSbSbiL 'OUI 1N3 dozjaddQ3 jsl :eo or Et inr the Dated: RESOLUTIONS ADOPTED BY SOLE DIRECTOR AND SHAREHOLDER OF CHURCH EXPANSION MANAGEMENT, 'NC. undersign -.d, being the sole Director and Shareholder, hereby adopts g resolutions: (1 RESOLVED, that the following persons be, and they hereby are, elected to the designated offices of the Corporation, to serve until their successors are elected and qualify: Deborah L. Williams President: Deborah L. Williams ry Deborah L. Williams Deborah L. Williams .VED, that all the acts taken and resolutions adopted by the rator are, approved, ratified and adopted. )LVED, that the form of seal submitted to this meeting be, and it y is, approved and adopted as the corporate seal of this ration, and that an impression thereof be made on the margins of minutes. tiOLVED, that the specimen form of certificate annexed hereto be, it hereby is, approved and adopted as the certificate representing shares of this Corporation. (5) I ESOLVED, that the Secretarial Certificate annexed hereto reflecting e banking arrangements of the Corporation be, and it hereby is, Proved and the resolutions set forth therein adopted. 23, 2003 —�aL - Director and Shareholder 9'd BEBOGt'9*11 'OuT 1N3 doziaddo9 dgT=ED OT ET Tnr f, Ca hereby cer That this office it is full, try Scc /Stata Form CE, 11 L•d State of California Secretary of State A0624985 Mitchell, Acting Secretary of State of the State of California, attached transcript of 1._ page(s) was prepared by and in the reccrd on file, of which it purports tr� be a copy, and that td correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Scal of the State of California this (fay of MAR 1 5 V IS CATHY MITCHULI_ Acting Secretary of Rt:re 03!2005) BeBbSbS*TL `QUI IN3 40%jad403 dST :co oT ET inr The unders 1) E 2) A t T 3) T a 4) Tli I further dec that the ma knowledge. ENDORSED - FILE D CERffi IC;A- tEOF=ANAENDMENT OF- In the office of the Secretary of state A,'T ICI..EES OF INCORN- )RATION of the State ofCellfornla MAR.• 1 G 2005 certifies; that: the Presid ni and thF:- Sec:--etary, ;espe :(;iI4'L !, Of C:ntrrch nsion Marragernent, A,c., a Ca.lifcr; iis3 Corpor i':on. I of the .V+icles of fn!;orpciratirxr of this corpotaSr)n is amended as folkrn/ :;- name of fni5 Corporation is: Ccipperi `o I"'1?terFirtS85, Inc. foregoing .znrendmert'i of Ar1'rcfes of Incorporatinn has been duly 'oved by tha Board of Dirc >ctors, corporation gas isi rued no shares. Under pet talty, of perjury under th,: t�kvvs o!` ttrs State of Cal'rforfna set forth in T`lis certificate ar=zt VLic'! and conc,(,'t of my own Date: 03/10005 ;JF >i)orah L. Wii,lianis, President DE, hot f -,il L 1IVilliagns, Secretary B'd BEBi'SbSt•TL -.,Dul IW3 40%- tadd03 dST (EO 01 ET inL'