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HomeMy WebLinkAbout2014 CON Division 8 Glass - Library Window RepairAGREEMENT #162b BY AND BETWEEN THE CITY OF NATIONAL CITY AND DIVISION 8, INC. THIS AGREEMENT is entered into this 17th day of February, 2014, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and DIVISION 8 INCORPORATED (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires tc employ a CONTRACTOR to provide ulass and window replacement and repair at the Public Library. WHEREAS, the CITY has deteif eined that the the CONTRACTOR is qualified by experience and ability to perform the services desired by the CITY, and the the CONTRACTOR is willing to perform such services. NOW. THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF (THE "CONTRACTOR").. The CITY agrees to engage the the CONTRCTOR and the the CONTRACTOR agrees to perform the services set forth here in accordance with all terms and conditions contained in Exhibit "A". The CONTRACTOR represents that ali services shall be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR, 2. SCOPE OF SERVICES. The CONTRACTOR will remove five (5) vandalized windows and shall provide and instal five (5) new whadtaws at National City Library. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as a.uthorized in advance by the CITY. The CONTRACTOR shall appear at meetings as needed to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally_ or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of 'Services to be performed by- the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to moot in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said chaivte in services, not to exceed a factor of 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Facilties Maintenance Supervisor Rick Hernandez. hereby is designated as the Project Coordinator for the CITY and will monitor: the prop and execution ofthis Agreement. The CONTRACTOR shall ,assign a single Project Director to provide supervision and have overall responsibility fot- the progress and execution of this Agreement for the CONT ACTOR.. Brian Johnson thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATjON AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billimts covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any, The total cost for all work described in Exhibit "A" shall not exceed 1 7,000_00 (the Base amount) in any one year period without prior written authorization from the .Purchasing Agent. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", determined by the CITY. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Aoreement, for inspection by the Crry, and for furnishing of copies to the CITY, ifrequested, 5. ACCEPTABILITY OF WORK. The City shall decide any and ail questions which may arise as to the quality or acceptability of the services oerfoimed and the. manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONTRACTOR and the Ciry cannot agree to tht.,.. quali-ty or acceptability of the work, the manner of performance and/or the compensation payable to the CONTRACTOR in this Agreement, the City or the CONTRACTOR shall give to the other written notice. Within ten (10) business days, the CONTRACTOR and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of perfoi iliance andlor the compensation parable to the CONTR_A.CTOR. 6. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Ag,reement will become effective on February 17, 2014. The duration of this .Aiireement is for the period of February I 7, 2014 through August 3 i , 2014, DISPOSITION AND OWNERSHIP OF DOCUMENTS. The lViernoranda, Reports, Maps, Drawinns, Plans, Specifications, and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CITY For use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CITY, aid CONTR_ACTOR thereby expressly V/FliVelS and disclaims any cOpriOlt in. and the right to reproduce, all written material, drawintts, ulans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR. shall, upon request of the CITY, execute any further doeument(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CITY may use, reuse, alter, reproduce, modify, assign,. tTansfeu. or in any other way, medium, or method utilize the CONTRACTOR'S written work product for the CITY'S purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it bv CV Code Sections 980 thromth 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14, but only with respect to the effect of the modification or reuse. by the CITY, or for any liability to the CITY should the documents be used bv the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed, 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S einployees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, includina but not limited to retirement. medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR arid the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement .vas, and is, 'he prolessional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or SUBCONTRACTORS, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S') to adhere to the applicable terns of this .kgrecinent. 9. CONTROL. Neither the CITY nor its officers, age:11s, or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR'S employees, except as herein set forth, and the CONTR_ACTOR or the CONTRACTOR'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONTRACTOR its agents, servants. and employees are as to the CITY wholly independent CONTRACTOR, and that the CONTRACTOR'S obligations to the CITY arc solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance ofthe services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City -whether now in force or subsecitiently cnacted. The CONTRACTOR and each cif its SUBCONTRACTOR(S), shall obtain and inaintain a current City of National City business license prior to and during performance of any work pursuant to this Aarcement. I 1. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any,' license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 12. STANDARI) OF CA_RE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR'S employees and members of the public from risk of harm arising out of the nature of the work andlor the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONTRACTOR warrants to the CITY that it is WI now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR'S professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CITY otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CITY for any increased costs that result from the ,CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable tirne. 13. NON-DISCRIMINATION PROvISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry. religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the followinu: employment, upgrading, demotion,. transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for :employment any notices provided by the CITY setting forth the provisions of this non-disc.rimination clause. 14. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain ccirifidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own oracti‘ation. to the, extent necessary to perform the services to be provided herein. The, forcgoing obligation of this Section 13, however, shall not apply to any part of the information that .(1) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality, or (iv) has been or is hereafter riOnfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third parry, The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR a,,rees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone vshornsoever, resulting from or arising out of the CONTRACTOR'S perfciniance or other obligations tinder this Agreement-, provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 16. WORKERSCOMPENSATION. The CONTRACTOR shall comply with all of the provisions of the 'Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto.; and all similar State or 'federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against ail claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's :Fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to he performed by the CONTRACTOR under this Agreement. 17. INSURANCE. The CONTRACTOR, at its scic cost and expense, shall purchase and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A, 1 If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per ozcurrm.ce. B. Automobile Insurancie covering all bodily injury arid property damage incurred during the performance of this Agreement, with a minimum coverage of S1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles Carty auto''). The policy shall name. the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $1,000,000 per occurrence arid $2,000,000 aggregate, coveting all bodily injury and property damage arising out of its operations under this A_greement. The policy shall name, the CITY and its officers, agents and employees as additional insureds, and a separate atiaiiional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR'S employees and employersliability insurance with limits of at least S1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONTRAC'FOR has no employees subject to the California Workers' Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said Declaration shall be provided to CONTRACTOR by CITY. E. The aforesaid policies shall constitute primary insurarice as to the CITY, its officers, employees, and volunteers. so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. if required insurance coverage is orovided on a "claims made" rather than "occurrence" form, the CONTRACTOR shtW maintain such insurance coverage for three years after expiration of the term (and any extensions) of this _kg -seen -lent. In addition. the "retro" date must be on or before the date of this Aoreement. G. insurance shall be c‘ritten with only California admitted companies that hold a current policy holder's alphabetic and financial: size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CI FY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on. the most recent California List of Fligible Surplus Lines Insurers (LESLI list) and otherwise meet rdiing requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with are filed with and approved by - the CITY'S Risk Manager. if the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during, the terms of this Aitreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of tins Agreement and terminate the Agreement as provided herein, All deductibles and self -insured retentions in excess of SI 0,000 must be disclosed to and approved by the CITY. 18. LEGAL r EES. If any p,ari-‘.: brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other panty arising out of this Ao-reernent, then in that event, the prevailing party in such action or dispute, whether by final judment or out -of - court settlement, shall be entitled to have and recover of and front the, other partv all costs and expenses of suit, including attorneys' fees. For purposes of deterrnining who is to be considered the prevailing party, it is stipulated that attorneys fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing parry if other than the CITY shall, in addition, be limited to the amount of attomey's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing pantv. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shal! be settled by arbitration in San Diego. California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be finial and conclusive upon the parties, and a judgment thereon may be entered in any cottrt having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its Cr‘NTI experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award, 20. TERMINATION, A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's wrinen notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B_ This Agreement may also be terminated immediately by the CITY for cause in the event of a. material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memor-anda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR_ whether paper or electronic, shall immediately bec_..orne the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts pay -able hereunder, and less any damages caused the CITY by the CONTRACTOR'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. E. The CITY further reserves the right to immediately terminate this Agreement upon: (I) the filing of a petition in bankruptcy affecting The CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR, 21. NOTICES, Ali notices or other columunications required or permitted hereunder shall be in writing, and shall be personally delivered, or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested-, or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following fts deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail. five (5) days (ten (10) days ifthe address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when som. Any notice, request, demand, direction or other communication delivered or sent as specified above !shall be directed to the thilowing persons: To CITY: Rick Hernandez Facilities Maintnenance Supervisor National City Public Works City of National Citty 2100 Hoover Ave, National City, CA 91950 To CONTRACTOR: Brian Johnson Operations Manager Division 8 11\IC. 1920 Cordell Court :4105 El Cajon, Ca. 92020 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of -which no notice was given shall he deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand. direction or other communication sem by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter:mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement. the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict or Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its 8 official position to influence in any way Firy matter coming before the CITY in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any 'matter on which it might perform services for the CITY, I If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CITY for all damages, ,....osts or expenses the CITY may suffer by vinue of any violation of this Paragraph 22 by the CONTRACTOR. 23. PREVAILING WAGES, State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to. Sections 1720,1720.2, 1720.3, 1720.4, and 1771. CONTRACTOR is solely responsible to determine if State prevailing wage 'rates apply and, ilapplicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 24. MISCELLANEOUS PROVISIONS. A. Computation of Tiliit! Peri0a:5'_ If any date or time period provided for in this Agreement is or ends on a Samrday, Sunday or federal, state. or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of thc next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Countelparfs_ `[his Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a pari of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person er entity other than the parties hereto. E_ Exhibits and Schedules. The exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this .,4greement. The terms of this AaTeernem may not be modified or amended except by an instrument in writin.c_i executed by each of the parties hereto. C, Waiver. The waiver or failure to enforce any provision of this Agreement shall no operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Audit. If this Agreement exceeds ten -thousand dollars (S10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Govenunent Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or wrinen, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall he of any effect unless it is in writing and executed by the party to be botmd thereby. K. Successors arid Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assign of the parties hereto. L. Consiruction. The parties acknowledge and aaree that (i) each party is of equal bargaining strength, (ii) each party has acnvely narticipated in the draftina, prenarafion and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Ageernent following such review and the rendering ofsuch advice. and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. --Signature Page to Follow--- 10 CITY OF NATIONAL CITY BY: Leslie Deese City Manager (WED AS TO FORM. DIVISION 8 INC. (Corporalirm - stmatures of Iwo corporate qgicers.) (Partnership - one signature) (Sole prol_wicsor iip - orIc sfrEattere) mile) CI . (Nc.anc) City .Attomey .244-4 hly- \ (Print) Co elporxyle decer-hy (Title) ' Cara -all Coua:: i0 2,Rn_72,car-z.,, "52, 2til, I0 Nati-oar' City Baloiev-,4-7---', S2.31 CA„ Rick Tiernadaciet aaas `-r 17.2raislied and 3.11sta;Jeta., 2-7,a2-±!ss Inclusiori$ 'Due tt:). the pooitir,t-,. apfti `at:. ENO fo-z raaximurn 311,a _ p-an'ar2 anal slazul n'Y Ci•""E.:.,";,1"""laCe."7, LG ]E, -.5.77orola Tf,,a7 Tzozal.actr,'L 7C,.aL saucol-ai. joiza;.. 2) Diyisicz, S 21c,D-0.noiaa not be r--,- for reipNaiamenz• OP ID: VP ACC7RL THIS S 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 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 Rancho Mesa Insurance Services 250 Riverview Parkway S401 Santee, CA 92071 Daniel W. Frazee INSURED Division 8, Incorporated 1240 Vernon Way El Cajon, CA 92020 INSR LTR GENERAL LIABILITY A I X I COMMERCIAL GENERAL LIABILITY 1 CLAIMS -MADE X OCCUR CERTIFICATE OF LIABILITY INSURANCE Phone: 619-937-0164 Fax: 619-937-0168 COVERAGES CERTIFICATE NUMBER: 1PERIO ITHIS IS TO THAT THE NDCATED.CIFY NOTTWITHSTANDING ANY IREQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TOES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THELWHICH 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. ADDL SUBRI POLICY EFF POLICY EXP (MMIDDNYYYI IMMIDDIYYYY) CONTACT NAME: PHONE INC No. Extl: E-MAIL ADDRESS: PRODUCER DIVIS-1 CUSTOMER ID 5: INSURER(S) AFFORDING COVERAGE INSURER A : Century Surety Company INSURER B : Golden Eagle Insurance Corp INSURER C National Union Fire Inc Co I FAX (A/C, No): NAIC 10836 19445 INSURER D : Cypress Insurance Company INSURER E ; Great American E&S Insurance INSURER F 10855 TYPE OF INSURANCE GEN'L AGGREGATE LIMIT APPLIES PER: POLICY X j TCF LOC AUTOMOBILE LIABILITY B I X ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS X HIRED AUTOS X NON -OWNED AUTOS INSR WVDi POLICY NUMBER X X CCP8333666 X'. 'BA7203133 08/01/2013 08/01/2013 08101/2014 08101/2014 REVISION NUMBER: EACH OCCURRENCE. DATE (MMIDDIYYYY) 03/04/2014 LIMITS $ DAMAGE TO RENTED PREMISES (Ea occurrence)__,_. _$ MED EXP (Any one person) ! $ PERSONAL & ADV INJURY '.$ 1,000,000 GENERAL AGGREGATE !$ 2,000,000 . PRODUCTS - COMP/OP AGG 1 $ 2,000,000 1$ COMBINED SINGLE LIMIT ! $ (Ea accident) BODILY INJURY (Per person) 1 $ 1,000,000 100,000 5,000 1,000,000 BODILY INJURY (Per accident)! $ PROPERTY DAMAGE (Per acddent) $ X UMBRELLA LIAB EXCESS UAB DEDUCTIBLE RETENTION $ OCCUR CLAIMS -MADE 1 WORKERS COMPENSATION AND EMPLOYERS' LtABILITV D V ! N 1 ANY PROPRIETOR/PARTNER/EXECUTIVE !I OFFICER/MEMBER EXCLUDED? (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below E 1Professional/ DESCRIPTION OF OPERATIONS !LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more apace Is required) RE: NATIONAL IO AA LED TYDIIBRA.RYY,INSUREDS.10NATIONAL ( CITY BLVD., SAN DIEGO, CA 91950. E NIA BE013502671 3300065126131 PCE184969003 08/01/2013 08/01/2013 I 0810112013 08/01/2014 08/0112014 08/01/2014 Limit Ded $ OTHER-1 J EACH OCCURRENCE $ 5,000,000 AGGREGATE '$ 5,000,000 X pCSTTTTS. E.L. EACH ACCIDENT j$ 1,000,000 El, DISEASE EA EMPLOYE $ 1,000,000 E.L. DISEASE POLICY LIMIT I $ 1,000,000 $1MIU$2MIL 50,000 CERTIFICATE HOLDER CITYNA7 CITY OF NATIONAL CITY NATIONAL CITY PUBLIC WORKS ATTN: RICK HERNANDEZ 2100 HOOVER AVE NATIONAL CITY, CA 91950 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD NOTEPAD: MOLDER CODE CITYNA7 DIVIS-1 INSURED'S NAME Division 8, Incorporated OP ID: VP CITY OF NATIONAL CITY ITS OFFICERS AND EMPLOYEES ARE INCLUDED AS NON-CONTRIBUTORYORRED PER WORDING APPLIESRM CGL 1816 AUTOl06 ADDII1D TIIONALC37 INSURED APPLIESTTACHED. PER AND ENDORSEMENT ATTACHED. WAIVER OF SUBROGATON IN FAVOR OF CITY OF NATIONAL CITY ITS OFFICERS AND EMPLOYEES PAGE 2 DATE 03/04/14 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 99 04 10A (Ed 07-07) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA BLANKET BASIS We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) The additional premium for this endorsement shall be 2.00 % of the total policy premium otherwise due on such remuneration. The minimum premium for this endorsement is $ 3,n nn Schedule Person or Organization ALL ORGANIZATIONS FOR WHOM THE WAIVER OF SUBROGATION IS ISSUED Job Description ALL CALIFORNIA OPERATIONS This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 08/01/2013 Policy No. 3300065126-131 Insured DIVISION 8, INC. Insurance Company Cypress Insurance Company WC 99 04 10A (Ed 07-07) Endorsement No. 1 Premium $ Countersigned by NAMED INSURED: DIVISION 8, INC. POLICY NUMBER: BA7203133 COMMERCIAL AUTO GOLD ENDORSEMENT THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM SECTION II - LIABILITY COVERAGE A. COVERAGE 1. WHO IS AN INSURED The following is added: d. Any organization, other than a partnership or joint venture, over which you maintain ownership or a majority interest on the effective date of this Coverage Form, if there is no similar insurance available to that organization. e. Any organization you newly acquire or form other than a partnership or joint venture, and over which you maintain ownership of a majority interest. However, coverage under this provision does not apply: (1) If there is similar insurance or a self -insured retention plan available to that organization; or (2) To "bodily injury" or "property damage" that occurred before you acquired or formed the organization. f. Any volunteer or employee of yours while using a covered "auto" you do not own, hire or borrow in your business or your personal affairs. Insurance provided by this endorsement is excess over any other insurance available to any volunteer or employee. 9• Any person, organization, trustee, estate or governmental entity with respect to the operation, maintenance or use of a covered "auto" by an insured, if: (1) You are obligated to add that person, organization, trustee, estate or governmental entity as an additional insured to this policy by: (a) an expressed provision of an "insured contract", or written agreement; or (b) an expressed condition of a written permit issued to you by a governmental or public authority. (2) The "bodily injury" or "property damage" is caused by an "accident" which takes place after: (a) You executed the "insured contract" or written agreement; or (b) the permit has been issued to you. &ECA 701 (01/07) Includes copyrighted material of insurance Sereices Offices. Inc. with its permission Page I of 4 NAMED INSURED: DIVISION 8, INC. POLICY NUMBER: BA7203133 2. COVERAGE EXTENSIONS a. Supplementary Payments. Subparagraphs (2) and (4) are amended as follows: (2) Up to $2500 for cost of bail bonds (including bonds for related traffic law violations) required because of an "accident"' we cover. We do not have to fumish these bonds. (4) All reasonable expenses incurred by the "Insured" at our request, including actual loss of earning up to $500 a day because of time off from work. SECTION III - PHYSICAL DAMAGE COVERAGE A. COVERAGE The following is added: 5. Hired Auto Physical Damage a. Any "auto" you lease, hire, rent or borrow from someone other than your employees or partners Of members of their household is a covered "auto" for each of your physical damage coverages. b. The most we will pay for "loss" in any one "accident" is the smallest of: (1) $50,000 (2) The actual cash value of the damaged or stolen property as of the time of the "loss"; or (3) The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality. If you are liable for the "accident", we will also pay up to $500 per "accident" for the actual loss of use to the owner of the covered "auto". c. Our obligation to pay for, repair, retum or replace damaged or stolen property will be reduced by an amount that is equal to the amount of the largest deductible shown for any owned "auto" for that coverage. However, any Comprehensive Coverage deductible shown in the Declarations does not apply to "loss" caused by fire or lightning. d. For this coverage, the insurance provided is primary for any covered "auto" you hire without a driver and excess over any other collectible insurance for any covered "auto" that you hire with a driver. 6. Rental Reimbursement Coverage We will pay up to $75 per day for up to 30 days, for rental reimbursement expenses incurred by you for the rental of an "auto" because of "loss" to a covered "auto". Rental Reimbursement will be based on the rental of a comparable vehicle, which in many cases may be substantially less than $75 per day, and will only be allowed for a period of time it should take to repair or replace the vehicle with reasonable speed and similar quality, up to a maximum of 30 days. We will also pay up to $500 for reasonable and necessary expenses incurred by you to remove and replace your materials and equipment from the covered "auto". CECA 701 (01/07) Includes copyrighted arterial of Insurance Service Offices, Inc. with its permission Page 2 of 4 NAMED INSURED: DIVISION 8, INC. POLICY NUMBER: BA7203133 If "loss" results from the total theft of a covered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided under paragraph 4. Coverage Extension. 7. Lease Gap Coverage If a Tong -term leased "auto" is a covered "auto" and the lessor is named as an Additional Insured - Lessor, In the event of a total loss, we will pay your additional legal obligation to the lessor for any difference between the actual cash value of the "auto" at the time of the loss and the "outstanding balance" of the lease. "Outstanding balance" means the amount you owe on the lease at the time of loss less any amounts representing taxes; overdue payments; penalties, interest or charges resulting from overdue payments; additional mileage charges; excess wear and tear charges; and lease termination fees. B. EXCLUSIONS The following is added to Paragraph 3 The exclusion for "loss" caused by or resulting from mechanical or electrical breakdown does not apply to the accidental discharge of an airbag. Paragraph 4 is replaced with the following: 4. We will not pay for "loss" to any of the following: a. Tapes, records, disks or other similar audio, visual or data electronic devices designed for use with audio, visual or data electronic equipment. b. Equipment designed or used for the detection or location of radar. c. Any electronic equipment that receives or transmits audio, visual or data signals. Exclusion 4.c does not apply to: (1) Electronic equipment that receives or transmits audio, visual or data signals, whether or not designed solely for the reproduction of sound, if the equipment is permanently installed in the covered "auto" at the time of the "loss" and such equipment is designed to be solely operated by use of the power from the "auto's" electrical system, in or upon the covered "auto"; or (2) Any other electronic equipment that is: (a) Necessary for the normal operation of the covered "auto" or the monitoring of the covered "auto's"operating system; or (b) An integral part of the same unit housing any sound reproducing equipment described in (1) above and permanently installed in the opening of the dash or console of the covered "auto" normally used by the manufacturer for installation of a radio. D. DEDUCTIBLE The following is added: No deductible applies to glass damage if the glass is repaired rather than replaced. GECA 701 (01/07) Includes copyrighted material of Insurance Serryices Offices, Inc. with its permission Page 3 of 4 NAMED INSURED: DIVISION 8, INC. POLICY NUMBER: BA7203133 SECTION IV. BUSINESS AUTO CONDITIONS A. LOSS CONDITIONS Item 2.a. and b. are replaced with: 2. Duties In The Event of Accident, Claim, Suit, or Loss a. You must promptly notify us. Your duty to promptly notify us is effective when any of your executive officers, partners, members, or legal representatives is aware of the accident, claim, "suit", or loss. Knowledge of an accident, claim, "suit", or loss, by other employee(s) does not imply you also have such knowledge. b. To the extent possible, notice to us should include: (1) How, when and where the accident or loss took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the accident or loss. The following is added to 5. We waive any right of recovery we may have against any additional insured under Coverage A. 1. Who Is An Insured g., but only as respects loss arising out of the operation, maintenance or use of a covered "auto" pursuant to the provisions of the "insured contract", written agreement, or permit. B. GENERAL CONDITIONS 9. is added 9. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS Your unintentional failure to disclose any hazards existing at the effective date of your policy will not prejudice the coverage afforded. However, we have the right to collect additional premium for any such hazard. COMMON POLICY CONDITIONS 2.b. is replaced by the following: b. 60 days before the effective date of cancellation if we cancel for any other reason. GECA 701 (01/07) Includes copyrighted material of Insurance Services Offices, Inc. with its permission Page 4 of 4 POLICY NUMBER: USA4000564 COMMERCIAL GENERAL LIABILITY CG 25 03 05 09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Project(s): All covered projects of the insured. A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under Section 1— Coverage A, and for all medical expenses caused by accidents under Section I — Coverage C, which can be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. A separate Designated Construction Project General Aggregate Limit applies to each des- ignated construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under Coverage A, ex- cept damages because of "bodily injury' or "property damage" included in the "products - completed operations hazard", and for medi- cal expenses under Coverage C regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". CG 25 03 05 09 3. Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the Designated Con- struction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Ag- gregate Limit shown in the Declarations nor shall they reduce any other Designated Con- struction Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Damage To Premises Rented To You and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Decla- rations, such limits will be subject to the appli- cable Designated Construction Project Gen- eral Aggregate Limit. C Insurance Services Office, Inc., 2008 Page 1 of 2 0 B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under Section I — Coverage A, and for all medical expenses caused by accidents under Section I — Coverage C, which cannot be attrib- uted only to ongoing operations at a single des- ignated construction project shown in the Sched- ule above: 1 Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products -completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Construction Project General Aggre- gate Limit. Page 2 of 2 C. When coverage for liability arising out of the "products -completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products -completed operations hazard" will reduce the Products -completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Construction Project General Aggregate Limit. D. If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contract- ing parties deviate from plans, blueprints, de- signs, specifications or timetables, the project will still be deemed to be the same construction pro- ject. E. The provisions of Section III — Limits Of Insur- ance not otherwise modified by this endorsement shall continue to apply as stipulated. ® Insurance Services Office, Inc., 2008 CG 25 03 05 09 ❑ POLICY NUMBER: USA4000564 COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): As required by written construction contract. Location And Description Of Completed Opera- tions As required by written construction contract. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by' your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products - completed operations hazard". CG 20 37 07 04 @ ISO Properties, Inc., 2004 Page 1 of 1 .hl'r'RA1Ell Ali •. 41///1//MI ii.d . n 1iollll0\ CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk DIVISION 8, INC. Glass and Window Replacement and Repair at the NC Public Library Rick Hernandez (Engineering / Public Works) Forwarded Copy of Agreement to Division 8, Inc.