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HomeMy WebLinkAboutC-5149 - Purchase and Installation Agreement for Fire Station #6 GatePURCHASE AND INSTALLATION AGREEMENT p— WITH BYERS & BUTLER INC. FOR FIRE STATION #6 GATE I-Q THIS PURCHASE AND INSTALLATION AGREEMENT ( "Agreement ") is made k and entered into as of this ��day of � MN 2012 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and BYERS & BUTLER INC., a California corporation ( "Contractor "), whose address is 3383 Olive Avenue, Long Beach, CA 90807 and is made with reference to the following: i0xyrr_31K 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 desires to engage Contractor to install a new gate and entry system at Fire Station #6, located at 1348 Irvine Ave, Newport Beach, CA 92660 ( "Project "). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal member of Contractor for purposes of Project shall be Brad Cole. E. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on July 31, 2012 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Contractor shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall complete the Work within the time set forth in this Section. 3.2 All Work shall be completed by June 30, 2012. 3.2.1 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 within two (2) days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Contractor's control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. 4. COMPENSATION TO CONTRACTOR 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 or Progress Payments Schedule attached hereto as Exhibit B and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Eleven Thousand Nine Hundred Seventy Dollars and 62/100 ($11,970.62) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Contractor shall submit a final invoice to City describing the Work performed. Contractor's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services 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. 4.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement, or specifically approved in writing in advance by City. 4.4 Contractor shall not receive any compensation for Extra Work performed 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 Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. Byers & Butler Inc. Page 2 5. PROJECT MANAGER 5.1 Contractor shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Brad Cole to be its Project Manager. Contractor shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Contractor, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. The Operations Support Superintendent or his /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 designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Contractor in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Contractor, one (1) copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Contractor's Work schedule. 8. STANDARD OF CARE 8.1 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. 8.2 All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest industry standards. For purposes of this Agreement, the phrase "highest industry standards" shall mean those standards of practice recognized by one (1) or more first -class firms performing similar work under similar circumstances. 8.3 All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the highest industry standard. Byers & Butler Inc. Page 3 8.4 Contractor represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 8.5 Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate.(directly or indirectly) to any 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). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. 10. INDEPENDENT CONTRACTOR It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of Byers & Butler Inc. Page 4 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 of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Contractor on the Project. 12. CITY POLICY Contractor shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Contractor is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE 14.1 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, 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 Contractors bid. 14.2 Coverage and Limit Requirements. 14.2.1 Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employers liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractors 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 Employers 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. Byers & Butler Inc. Page 5 14.2.2 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. 14.2.3 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. 14.2.4 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. 14.3 Other Insurance Provisions or Requirements. 14.3.1 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. 14.3.2 General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 14.3.2.1 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 Byers & Butler Inc. Page 6 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. 14.3.2.2 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. 14.3.2.3 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. 14.4 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. 14.5 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. 14.6 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. 14.7 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 Contractors performance under this agreement. 14.8 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 Byers & Butler Inc. Page 7 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. 14.9 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. 14.10 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. 14.11 .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. 14.12 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. 14.13 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. 15. WARRANTY Contractor agrees that the equipment and materials installed pursuant to this Agreement shall be covered by a five (5) year manufacturer's warranty, a one (1) year labor warranty on all other materials, and a one (1) year labor warranty on all new equipment installed by Contractor, as outlined in the Warranty Information, attached hereto as Exhibit C and incorporated in full by this reference. 16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or Byers & Butler Inc. Page 8 subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Contractor. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 17. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any 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. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 18. OWNERSHIP OF DOCUMENTS 18.1 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Contractor or any other party. Contractor shall, at Contractors expense, provide such Documents to City upon prior written request. 18.2 Documents, including drawings and specifications, prepared by Contractor pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Contractor will be at City's sole risk and without liability to Contractor. Further, any and all liability arising out of changes made to Contractor's deliverables under this Agreement by City or persons other than Contractor is waived against Contractor and City assumes full responsibility for such changes unless City has given Contractor prior notice and has received from Contractor written consent for such changes. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. Byers & Butler Inc. Page 9 20. INTELLECTUAL PROPERTY INDEMNITY The Contractor shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged 'infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Contractor's Documents provided under this Agreement. 21. RECORDS Contractor shall keep records and invoices in connection with the Services to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Contractor shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement. 22. 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. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Contractor which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Contractor, the additional design, construction and /or restoration expense shall be borne by Contractor. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. `z�•��rT��r�:ri�:t• i» IrJ>�•�-z•�:r�:z�•�..r��it•�� City reserves the right to employ other Contractors in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 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 Byers & Butler Inc. Page 10 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. 25.2 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. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first - class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Operations Support Superintendent Municipal Operations Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 -718 -3477 Fax: 949 - 650 -0747 Email: jauger @newporteachca.gov 26.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Brad Cole BYERS & BUTLER INC. 3383 Olive Avenue Long Beach, CA 90807 Phone: 562 - 427 -5353 Fax: 562 - 426 -9124 Email: byersandbutler @gmail.com 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this 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 any claims filing requirements set forth in the Agreement, the Contractor shall be required to file Byers & Butler Inc. Page 11 any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 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 assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. STANDARD PROVISIONS 29.1 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. In addition, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.2 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29.3 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 agreement or implied covenant shall be held to vary the provisions herein. 29.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. Byers & Butler Inc. Page 12 29.5 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. 29.6 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. 29.7 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. 29.8 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, State of California. 29.9 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, age or any other impermissible basis under law. 29.10 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. 29.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Byers & Butler Inc. Page 13 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: i By: Aaron(C. -Harp City Attorney�� ATTEST- Date: _ Date: -9s -P- By: " ok � i 6DV--,- Leilani I. Brown City Clerk CITY OF NEWP RT ACH, A California corporation Municipal Operations Director CONTRACTOR: BYERS & BUTLER INC., Date: `— A J A Z By: CA , (, Robert Hemmings Vice President/Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates/ Progress Payment Schedule Exhibit C — Warranty Information Byers & Butler Inc. Page 14 Exhibit A Scope of Services o Fabrication and installation of a single rolling gate. Gate to be 23 feet wide by 6 feet 4 inches tall. Gate to be metalized and powder coated to match stucco wall as close as possible. o Fabrication and installation of ground track and anchors (galvanized). Wheels to be chromed. Include gate glides and a no -lift shoe. o Supply /install Elite SL3000 1 horsepower gate operator. Install internal timer to hold gate open. o Supply /install a Multi Code coaxial receiver and antenna. Cut an inside free exit loop and an outside safety loop. Run 90 feet of Y2 inch rigid conduit mounted to the wall from a box by the electrical panel (supplied by city electricians) to the operator location. Attached: Drawings =0 . • o a 3 N L C- 2IPage ii �n C- 2IPage s P C -31 Page a Dover Dr. Included in the install: ' o The Installation of rigid electrical conduit frorajust out side of the existing breaker box to the new gate operator EXHIBIT B B &B Byers & Butler Inc. Proposell 3383 Olive Avenue Signal Hill, California - Brad 90755 Tech - Cole (562) 427 -5353 (800) 500 -9379 Fax(562)426 -9124 Stale License No. 283253 www.byersandbutier.com Proposal submitted to: City of Newport Beach Date 15 Feb. 12 Address 3300 Newport Blvd. Home Phone 949.718.34 Newport Beach, CA 92658 Work Phone 77 .lob name and 949.795.70 location: Newport Beach Fire Station #6 cell Phone 45 949.650.07 1348 Irvine Ave. I Fax 47 lauger(a�newportbeachc a. ov Newport Beach, CA 92658 We hereby submit specifications and estimates, subject to all terms and conditions as set forth, as follows: Fabrication and installation of a single rolling gate 23' wide by 6'4" tall. Gate to be metalized and powder coated to match the stucco wall as close as possible. Fabrication and installation of ground track and anchors (galvanized). Wheels will be chromed. Included are gate glides and a no -lift shoe. Supply and install an Elite SL3000 1h.p. gate operator. Install an internal timer to hold gate open. Supply and install a Multi Code coaxial receiver and antenna. Cut an inside free exit loop and an outside safety loop. Run 90' of 1/2" rigid conduit mounted to the wall from a box by the electrical panel (supplied by city electricians) to the operator location. Gate, track and rollers (as described above). $5,633.43 1- SL3000 UL 1 h.p. gate operator with Multi -Code coaxial receiver. $2,675.00 1- Internal timer. $150.00 1- DK 1803 -081 Lighted keypad with 2 memory capacity $454.00 2- Loop detectors. $375.00 1- Saw cut for loops. $250.00 1- Electrical run (as described above). $650.00 Tax $283.19 Labor $1,500.00 $11,970.62 5 year factory warranty on gate operator only. 1 year labor warranty on all other materials. 1 year labor warranty on all new equipment installed by Byers and Butler, Inc. Conditions All material is guaranteed to be as specified. All work is to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from specifications involving extra cost will be executed only upon B- 1IPage written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delay beyond our control. Owner to carry fire, tomado and other necessary insurance. Our workers are fully covered by Workmen's Compensation Insurance. We Propose hereby to furnish material and labor - -- complete in accordance with above specifications, Eleven Thousand Nine hundred Seventy for the sum of: and 62/100 Total $11.970.62 Payment Deposit required, then balance upon Schedule: installation. Deposit $6,000.00 Note: This proposal may be withdrawn by us if not accepted within 30 days. Authorized signature Bradley R. Cole Accepted: The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to Signature do the work as specified. Payment will be made as outlined above. Date Signature C -21 Page Exhibit C Warranty Information ,arrant Po�lic . 7 YEAR RESIDENTIAL 15 YEAR COMMERCIAL SL3000ULTM LIMITED WARRANTY The Chamberlain Group, Inc. ('Seller) warrants to the first purchaser of this product, for the structure In which this product is originally installed, that A's tree from defect in materials and/or workmanship for a period of 7 yearrresidentiall 5 year commercial . from the date of purchase [and that the SL30001JL- Is free from defect in materials and /or workmanship for a_pedod of 7 year residentiall 5 year commercial from the date of purchase]. The proper operation of this product is dependent on your compliance with the Instructions regarding installation, operation, maintenance and testing. Failure to comply strictly with those Instructions will void this limited warranty in its entirely. If, during the limited warranty period, this product appears to contain a detect covered by this limited warranty, call 1-800- 528 -2806, toll free, before dismantling this product. Then send this product, pre -paid and Insured, to our service center for warranty repair. You will he advised of shipping instructions when you call. Please Include a brief description of the problem and a dated proof -of- purchase receipt with any product returned for warranty repair. Products returned to Seller far vmrranty, repair, which upon receipt by Seller are confirmed to be defective and covered by this limited warranty, will he repaired or replaced (at Sellers sole option) at no cost to you and returned pre -paid. Defective parts will be repaired or replaced with new or tactory- rebuilt parts at Seller's sole option. ALL IMPLIED WARRANTIES FOR THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO THE 7 YEAR RESIDENTIAL/ 5 YEAR COMMERCIAL LIMITED WARRANTY PERIOD SET FORTH ABOVE [EXCEPT THE IMPLIED WARRANTIES WITH RESPECT TO THE SL3UGOULTM, WHICH ARE LIMITED IN DURATION TO THE 7 YEAR RESIDENTIAL/ 5 YEAR COMMERCIAL LIMITED WARRANTY PERIOD FOR THE SL3000UL -1, AND NO IMPLIED WARRANTIES WILL EXIST OR APPLY AFTER SUCH PERIOD. Some States do not allow limitations on haw long an Implied warranty lasts, so the above limitation may not apply to you. THIS LIMITED WARRANTY DOES NOT COVER NON- DEFECT DAMAGE, DAMAGE. CAUSED BY IMPROPER INSTALLATION, OPERATION OR CARE (INCLUDING, BUT NOT LIMITED TO ABUSE, MISUSE, FAILURE TO PROVIDE REASONABLE AND NECESSARY MAINTENANCE, UNAUTHORIZED REPAIRS OR ANY ALTERATIONS TO THIS PRODUCT), LABOR CHARGES FOR REINSTALLING A REPAIRED OR REPLACED UNIT, OR REPLACEMENT OF BATTERIES. THIS LIMITED WARRANTY DOES ROT COVER ANY PROBLEMS WITH, OR RELATING TO, THE GARAGE DOOR OR GARAGE DOOR HARDWARE, INCLUDING BUT NOT LIMITED TO THE DOOR SPRINGS, DOOR ROLLERS, DOOR ALIGNMENT OR HINGES. THIS LIMITED WARRANTY ALSO DOES NOT COVER ANY PROBLEMS CAUSED BY INTERFERENCE. ANY SERVICE CALL THAT DETERMINES THE PROBLEM HAS BEEN CAUSED BY ANY OF THESE ITEMS COULD RESULT IN A FEE TO YOU. , UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING IN CONNECTION WITH USE, OR INABILITY TO USE, THIS PRODUCT. IN NO EVENT SHALL SELLER'S LIABILITY FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY EXCEED THE COST OF THE PRODUCT COVERED HEREBY. NO PERSON IS AUTHORIZED TO ASSUME FOR US ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF THIS PRODUCT. Some slates do not allow the exclusion or limitation of consequential, incidental or special damages, so the above limitation or exclusion may not apply to you. This limited warranty gives you speci0c legal rights, and you may also have other rights which vary from state to slate. Ulj C -1 I Page Labor Warranties Per the proposal sheet as provided by Contractor in Exhibit B: 1 year labor warranty on all other materials 1 year labor warranty on all new equipment installed by Byers and Butler Inc. C- 2IPage CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. e Date Received: 5 -08 -12 Dept. /Contact Received From: Raymund Date Completed: 5 -10 -12 Sent to: Raymund By: Joel Company /Person required to have certificate: Byers and Butler, Inc. Type of contract All Other GENERAL LIABILITY EFFECTIVEIEXPIRATION DATE: 8- 23- 1118 -23 -12 A. INSURANCE COMPANY: Westem Heritage InsuranceCompany B. AM BEST RATING (A-: VII or greater): A +: XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? D. LIMITS (Must be $1M or greater): What is limit provided? E. ADDITIONAL INSURED ENDORSEMENT— please attach F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it Included? I. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? J. CAUTIONI (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement Include 'solely by negligence" wording? K. ELECTED SCMAF COVERAGE (RECREATION ONLY): L. NOTICE OF CANCELLATION: li. AUTOMOBILE LIABILITY EFFECTIVE /EXPIRATION DATE: 2- 13- 12/2 -13 -13 ❑ Yes ® No 1,000,000 ® Yes ❑ No ® Yes ❑ No ® Yes ❑ No ® Yes ❑ No ® Yes ❑ No ❑ Yes ® No ® N/A ❑ Yes ❑ No ❑ WA ® Yes ❑ No A. INSURANCE COMPANY: Mercury Casualty B. - AM BEST RATING (A-: VII or greater) A +: XIII C. ADMITTED COMPANY (Must be Califomia Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 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: ❑ NIA ® Yes ❑ No M. WORKERS' COMPENSATION EFFECTIVEIEXPIRATION DATE: .4- 04- 1214 -04 -13 A. INSURANCE COMPANY: Hartford Casualty Insurance Co. B. AM BEST RATING (A-: VII or greater): A: XV C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® WA ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY 1811111111 111110=1:;61 71015 HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No Products /Completed Operations, At Wording, and Primary/Non - contributory Items not reguired by agreement. Approved: y ti Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 5 -18 -2012 Date RISK MANAGEMENT APPROVAL REQUIRED (Non - admitted carrier rated less than _; Self Insured Retention or Deductible greater than $ ) ❑ WA ❑ Yes ❑ No Reason for Risk Management approval /exception /waiver. Approved: Risk Management Date * Subject to the terms of the contract. Reyes, Raymund From: Anderson, Cheryi Sent: Thursday, May 10, 2012 4:30 PM To: 'Joel Griffin'; Reyes, Raymund Subject: RE: Insurance Review - City of Newport Beach - Byers & Butler Co. Risk Management approves non - admitted status. &aV1 `eAa 6 ° oqa&e" a Human Resources Supervisor City of Newport Beach Phone (949) 644 -3307 Fax(949)723 -3509 THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAWS. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the Intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by e-mail or telephone, and delete the original message immediately. Thank you. From: Joel Griffin fmailto: JGriffin(a)alliantinsurance.coml Sent: Thursday, May 10, 2012 2:40 PM To: Reyes, Raymund Cc: Anderson, Cheryl Subject: RE: Insurance Review - City of Newport Beach - Byers & Butler Co. ... Non - admitted general liability carrier. Thanks! Joel Griffin, AIS, AINS Assistant Account Representative Specialty Group Alliant Insurance Services, Inc. 1301 Dove Street Suite 200 Newport Beach, CA 92660 Phone: (949) 660-5900 Fax (619) 699-0906 I oriffinfaDal I is ntinsu rance.co m www.alliantinsurance.com CA License #OC36861 From: Joel Griffin Sent: Thursday, May 10, 2012 2:39 PM To: 'Reyes, Raymund' Cc: Anderson, Cheryl Subject: RE: Insurance Review - City of Newport Beach- Byers & Butler Co. Hi Raymund, Attached is the checklist for Byers and Butler showing that they need to provide the Auto limits before approval, and the Additional Insured items aren't required by this agreement.