HomeMy WebLinkAboutBACKFLOW APPARATUS & VALVE, CO. (2)r,SuRANCE ON FILE
FORK MAY PROCEED
UNTO. INSURANCE EXPIRES
CLERK OF COUNCIL
PATE: DEC 2 0 2022
N-2022-369
AGREEMENT WITH BACKFLOW APPARATUS & VALVE, CO., TO PROVIDE TESTING
D :VWn�2i AND INSPECTION OF BACKFLOW PREVENTION SERVICES
� Rl) (kV)MS AGREEMENT is made and entered into this _Ist_ day of September, 2022 by and
between Backflow Apparatus & Valve, Co., a California corporation ("Contractor"), and the City of
Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and
laws of the State of California ("City").
RECITALS
A. The City desires to retain a contractor having special skill and knowledge in the field of
testing and inspecting backflow prevention devices and assemblies for the Public Works
Agency.
B. Contractor represents that Contractor is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Contractor represents that it is
knowledgeable in its field and that any services performed by Contractor under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional contracting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms
and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Contractor shall perform the tasks and obligations including all labor, materials, tools, equipment,
and incidental customary work required to fully and adequately complete the services described and set
forth in Scope of Services — Exhibit A, attached hereto and incorporated by reference.
2. COMPENSATION
a. City agrees to pay, and Contractor agrees to accept as total payment for its services under
this Agreement, the rates and charges identified in Exhibit A. The total annual sum to be
expended under the term of this Agreement, including any extension period, shall not
exceed Twenty -Five Thousand Dollars and Zero Cents ($25,000).
b. City shall recognize and pay for any outstanding invoices for work performed by
Contractor invoiced on or after August 31, 2022.
C. Payment by City shall be made within forty-five (45) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures.
d. Payment need not be made for work that fails to meet the standards of performance set
forth in the Recitals and Scope of Work, which may reasonably be expected by City.
Page 1 of 9
3. TERM
This Agreement shall commence on the date first written above and terminate on August 31, 2024,
unless terminated earlier in accordance with Section 17, below.
4. PREVAILING WAGES
Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770,
et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage
Laws"), which require the payment of prevailing wage rates and the performance of other requirements
on "public works" and "maintenance" projects. 1f the services being performed are part of an applicable
"public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total
compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws.
Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents
free and harmless from any claim or liability arising out of any failure or alleged failure to comply with
the Prevailing Wage Laws.
5. INDEPENDENT CONTRACTOR
Contractor shall, during the entire term of this Agreement, be construed to be an independent
contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to
create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise
discretion or control over the professional manner in which Contractor performs the services which are
the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided
in a manner consistent with all applicable standards and regulations governing such services, Contractor
shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar
taxes relating to employees and shall be responsible for all applicable withholding taxes.
6. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse,
or sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any
tangible medium of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Contractor
under this Agreement ("Documents & Data"). Contractor shall require all subcontractors to agree in
writing that City is granted a non-exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the
legal right to license any and all Documents & Data. Contractor makes no such representation and
warranty in regard to Documents & Data which were provided to Contractor by the City. City shall not
be limited in any way in its use of the Documents and Data at any time, provided that any such use not
within the purposes intended by this Agreement shall be at City's sole risk.
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INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Minimum Scope and Limit of Insurance
Commercial General Liability (CGL): Insurance Services Office Form CG 00 01
covering CGL on an "occurrence" basis, including products and completed operations,
property damage, bodily injury and personal & advertising injury with limits no less
than $1,000,000 per occurrence. If a general aggregate limit applies, either the general
aggregatelimit shall apply separately to this project/location (ISO CG 25 03 or 25 04)
or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with a
limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: as required by the State of California, with Statutory Limits,
and Employer's Liability Insurance with limit of no less than $1,000,000 per accident
for bodily injury or disease.
4. Broader Coverage: if the Contractor maintains broader coverage and/or higher limits
than the minimums shown above, the City requires and shall be entitled to the broader
coverage and/or the higher limits maintained by the Contractor. Any available
insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the City.
b. Other Insurance Provisions
Additional Insured Status: The City, its officers, officials, employees, and volunteers
are to be covered as additional insureds on the CGL policy with respect to liability
arising out of work or operations performed by or on behalf of the Contractor including
materials, parts, or equipment furnished in connectionwith such work or operations.
General liability coverage can be provided in the form of an endorsement to the
Contractor's insurance (at least as broad as ISO Form CG 20 10 1185 or if notavailable,
through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20
37 if a later edition is used).
2. Primary Coverage: For any claims related to this contract, the Contractor's insurance
coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects
the City, its officers, officials, employees, and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, or volunteers shall
be excess of the Contractor's insurance and shall not contribute with it.
Page 3 of 9
3. Notice of Cancellation: Each insurance policy required above shall provide that
coverage shall not be canceled, except with notice to the City.
4. Waiver of Subrogation: Contractor hereby grants to City a waiver of any right to
subrogation that any insurer of said Contractor may acquire against the City by virtue
of the payment of any loss under such insurance. Contractor agrees to obtain any
endorsement that may be necessary to affect this waiverof subrogation, but this
provision applies regardless of whether or not the City has received a waiver of
subrogation endorsement from the insurer,
5. Self -Insured Retentions: Self -insured retentions must be declared to and approved by
the City. The City may require theContractor to purchase coverage with a lower
retention or provide proof of ability to pay losses and related investigations, claim
administration, and defense expenses within the retention. The policy language shall
provide, or be endorsed to provide, that the self -insured retention may be satisfied by
either the named insured or City,
6. Acceptability of Insurers: Insurance is to be placed with insurers authorized to
conduct business in the state with a current A.M. Best's rating of no less than A:VIl,
unless otherwise acceptable to the City.
7. Claims Made Policies:
If any of the required policies provide coverage on a claims -made basis:
The Retroactive Date must be shown, and must be before the date of the contract
or the beginning of contract work.
ii. Insurance must be maintained and evidence of insurance must be provided for
at least Jive (5) year after completion of the contract of work.
iii. If coverage is canceled or non -renewed, and not replaced with another clainw-
made policy, farm with a Retroactive Date prior to the contract effective date,
the Contractor must purchase "extended reporting" coverage for a minimum of
five (5) years after completion of work.
8. Verification of Coverage: Contractor shall furnish the City with original Certificates
of Insurance including all required amendatory endorsements (or copies of the
applicable policy language effecting coverage requiredby this clause) and a copy of the
Declarations and Endorsement Page of the COL policy listing alipolicy endorsements
to City before work begins. However, failure to obtain the required documents prior to
the work beginning shall not waive the Contractor's obligation to provide them.
The City reserves the right to require complete, certified copies of all required insurance
policies,inciuding endorsements required by these specifications, at any time.
Page 4 of 9
9. Subcontractors: Contractor shall require and verify that all subcontractors maintain
insurance meeting all the requirements stated herein, and Contractor shall ensure that
City is an additional insured on insurance required from subcontractors.
10, Special Risks or Circumstances: City reserves the right to modify these requirements,
including limits, based on the nature of therisk, prior experience, insurer, coverage, or
other special circumstances.
8. INDEMNIFICATION
Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents,
employees, contractors, special counsel, and representatives from liability: (1) for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal
injury, including death, and claims for property damage, which may arise from the negligent operations
of the Contractor or its subcontractors, agents, employees, or other persons acting on their behalf which
relates to the services described in section 1 of this Agreement; and (2) from any claim that personal
injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms
of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all
claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have
been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects,
arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs
for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding
any action by a third party challenging the validity of this Agreement, or asserting that personal injury,
damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises
by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions
with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent
Contractor's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to
the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Contractor.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives,
and employees against any and all liability, including costs, and attorney's fees, for infringement of any
United States' letters patent, trademark, or copyright contained in the work product or documents provided
by Contractor to the City pursuant to this Agreement.
10. RECORDS
Contractor shall keep records and invoices in connection with the work to be performed
under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs
incurred under this Agreement and any services, expenditures, and disbursements charged to the 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 the City to examine, audit, and make transcripts or copies of
such records and any other documents created pursuant to this Agreement during regular business hours.
Page 5 of 9
Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement for a period of three (3) years from the date of final payment to Contractor under this
Agreement.
11. CONFIDENTIALITY
If Contractor receives from the City information which due to the nature of such information is
reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or
disclose such information except in the performance of this Agreement, and further agrees to exercise the
same degree of care it uses to protect its own information of like importance, but in no event less than
reasonable care. "Confidential Information" shall include all nonpublic information. Confidential
information includes not only written information, but also information transferred orally, visually,
electronically, or by other means. Confidential information disclosed to either party by any subsidiary
and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and
nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources;
(b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful
possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by
operation of law; or (e) is independently developed by the Contractor without reference to information
disclosed by the City.
12. CONFLICT OF INTEREST CLAUSE
Contractor covenants that it presently has no interest and shall not have interests, direct or indirect,
which would conflict in any manner with performance of services specified under this Agreement.
13. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be
in writing and shall be deemed to be properly given if delivered in person or mailed by first class or
certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided
in this Section, to the following persons:
To City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Executive Director
Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, CA 92702
Page 6 of 9
To Contractor: Backflow Apparatus & Valve, Co.
Attn: Robert Purzycki, Vice President
20435 South Susana Road
Long Beach, CA 90810-1136
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail, communication
shall be effective or deemed to have been given three (3) days after it has been deposited in the United
States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by
fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time
set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth
above. For purposes of calculating these timeframes, weekends, federal, state, County or City holidays
shall be excluded.
14. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Contractor regarding the subject matter herein, and supersedes any and all other agreements, oral or
written, between the parties. In the event of a conflict between the terms of this Agreement and any
attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except
by written instrument signed by the City and by an authorized representative of Contractor. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or
in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party
to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied
herein.
15. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor,
Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written
consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior
written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit
the City's ability to have any of the services that are the subject to this Agreement performed by City
personnel or by other Contractors retained by City.
16. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted by
the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving
the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed
a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver
constitute a continuing waiver unless the writing so specifies.
Page 7 of 9
17. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination.
In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for
all services performed by Contractor prior to receipt of such notice of termination, subject to the following
conditions:
a. As a condition of such payment, the Executive Director may require Contractor to deliver
to the City all work product completed as of such date, and in such case such work product
shall be the property of the City unless prohibited by law, and Contractor consents to the
City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work that fails to meet the standard of performance specified
in the Recitals of this Agreement.
18. NON-DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, relation, sex, marital status, sexual
orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the
recruitment, selection, training, utilization, promotion, termination or other employment related activities
or in connection with any activities under this Agreement. Contractor affirms that it is an equal
opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
19. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined
and governed by the laws of the State of California. Both parties further agree that Orange County,
California, shall be the venue for any action or proceeding that may be brought or arise out of, in
connection with or by reason of this Agreement.
20. PROFESSIONAL LICENSES
Contractor shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and
required by the laws and regulations of the United States, the State of California, the City of Santa Ana
and all other governmental agencies. Contractor shall notify the City immediately and in writing of its
inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability
shall be cause for termination of this Agreement.
21. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power,
authority and right to bind their respective parties to each of the terms of this Agreement,
and shall indemnify City fully, including reasonable costs and attorney's fees, for any
Page 8 of 9
injuries or damages to City in the event that such authority or power is not, in fact, held
by the signatory or is withdrawn.
b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
C. In the event of any conflict or inconsistency between the terms and conditions in this
Agreement and any terms or conditions set forth in any Exhibit, purchase order, or other
document relating to the transactions contemplated by this Agreement, the terms and
conditions set forth in this Agreement shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above
written.
ATTEST:
Clerk of the Council
APPROVED AS TO FORM
SONIA R. CARVALHO
City Attorney
By:�
randon Salvatierra
Deputy City Attorney
RECOMMENDED FOR APPROVAL
Nabil Saba, P.E.
Executive Director
Public Works Agency
CITY OF SANTA ANA
Kristine Ridge
City Manager
BACKFLOW APPARATUS & VALVE, CO
Name:
Title: v
Page 9 of 9
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NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor
Backflow Apparatus & Valve
Name:
Project
TBD (024)
Number:
Project Agreement With Backflow Apparatus & Valve, Co., To Provide
Name: Testing And Inspection Of Backflow Prevention Services
The Certificate of Insurance (COI) submitted indicates that the coverages are in
compliance with the insurance requirements. No further action is required at this time.
The compliant coverage(s) are:
POLICY EXPIRATION COI
TYPE OF INSURANCE FILE NAME
NUMBER DATE DATE
AUTOMOBILE LIABILITY BA7N173419 10/31/2023 12/20/2022 Certificate.pdf
GENERAL LIABILITY 6308J664090 10/31/2023 11/01/2022 Certificate.pdf
WORKERS COMPENSATION AND
UB3R1557402214G 08/27/2023 11/01/2022 Certificate.pdf
EMPLOYERS' LIABILITY
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team
1/3/2023 6:33 PM
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor
Backflow Apparatus & Valve
Name:
Project
N-2022-369
Number:
Project Agreement With Backflow Apparatus & Valve, Co., To Provide
Name: Testing And Inspection Of Backflow Prevention Services
The Certificate of Insurance (COI) submitted indicates that the coverages are in
compliance with the insurance requirements. No further action is required at this time.
The compliant coverage(s) are:
POLICY EXPIRATION
TYPE OF INSURANCE COI DATE FILE NAME
NUMBER DATE
Backflow
AUTOMOBILE LIABILITY BA7N173419 10/31/2024 10/10/2023 Apparatus &
Valve COI.pdf
Backflow
GENERAL LIABILITY 6308J664090 10/31/2024 10/10/2023 Apparatus &
Valve COI.pdf
23-24
Workers
WORKERS COMPENSATION AND
UB3R155740 08/27/2024 08/22/2023 Comp
EMPLOYERS' LIABILITY
Renewal
Certificate.pdf
Thank you,
City of Santa Ana
Risk Management Division
in partnership with
CTrax Plus Services Team
10/19/2023 1:59 PM