HomeMy WebLinkAboutC-10104-1 - On-Call PSA for Paint Inspection ServicesON -CALL PROFESSIONAL SERVICES AGREEMENT
WITH CERTERRA SOUTHWEST, LLC FOR
PAINT INSPECTION SERVICES
THIS ON -CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement") is
made and entered into as of this 13th day of February, 2026 ("Effective Date"), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and CERTERRA SOUTHWEST, LLC, a Nevada limited liability
company ("Consultant"), whose address is 1805 West Drake Drive, Tempe, AZ 85283,
with a local address of 12130 Santa Margarita Court, Rancho Cucamonga, CA 91730,
and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to preform pain inspection services on an on -
call basis ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant 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 June 30, 2027, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on -call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the
Services, and the name of the individuals to be assigned, if available;
and
2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant
shall diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the
Services shall be performed to completion in a diligent and timely manner. The failure
by Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter
Proposal, if any, or perform the Services in a diligent and timely manner may result in
termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant'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) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein 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 Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Consultant's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed
Twenty Five Thousand Dollars and 00/100 ($25,000.00), 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.
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4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant'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 Consultant no later than
thirty (30) calendar days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement and the Letter Proposal or
specifically approved in writing in advance by City.
4.4 Consultant 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 and the Letter Proposal.
5. PROJECT MANAGER
5.1 Consultant 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. Consultant has designated Todd Tendler to be its
Project Manager. Consultant 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 Consultant, 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. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Director of Public Works or designee shall be the Project Administrator and shall have
the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
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7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one 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 Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant 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 community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All
Services shall be performed by qualified and experienced personnel who are not
employed by City. By delivery of completed Work, Consultant certifies that the Work
conforms to the requirements of this Agreement, all applicable federal, state and local
laws, and legally recognized professional standards.
8.2 Consultant 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 Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant'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, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties"), from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), and which relate (directly or indirectly) to
the negligence, recklessness, or willful misconduct of the Consultant or its principals,
officers, agents, employees, vendors, suppliers, subconsultants, subcontractors,
anyone employed directly or indirectly by any of them or for whose acts they may be
liable, or any or all of them.
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9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence, active negligence or willful misconduct of the Indemnified Parties.
Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees
in any action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, 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 Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant 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 Consultant on the Project.
12. CITY POLICY
Consultant 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
Consultant is responsible for keeping the Project Administrator 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
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
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term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. 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
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 Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint -venture or syndicate or co -tenancy, which shall result in changing
the control of Consultant. 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.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Consultant 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. City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and 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.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents"), prepared or caused to be prepared by
Consultant, 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 Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, 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 Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
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17.2 Documents, including drawings and specifications, prepared by
Consultant 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 Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
17.3 Computer Aided Design and Drafting ("CADD") data delivered to City shall
include the professional stamp of the engineer or architect in charge of or responsible
for the Work. City agrees that Consultant shall not be liable for claims, liabilities or
losses arising out of, or connected with (a) the modification or misuse by City, or anyone
authorized by City, of CADD data; or (b) any use by City, or anyone authorized by City,
of CADD data for additions to this Project, for the completion of this Project by others, or
for any other Project, excepting only such use as is authorized, in writing, by Consultant.
By acceptance of CADD data, City agrees to indemnify Consultant for damages and
liability resulting from the modification or misuse of such CADD data. All original
drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg
file format, and should comply with the City's digital submission requirements for
improvement plans available from the City's Public Works Department.
17.4 All improvement and/or construction plans shall be plotted on standard
twenty-four inch (24") by thirty-six inch (36") paper size. Consultant shall provide to City
digital 'As -Built' drawings in both AutoCAD and Adobe PDF file format within thirty (30)
days after finalization of the Project.
18. 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.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant 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 Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant 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)
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years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant 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 Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant 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. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant 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.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and/or restoration expense shall be
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seg., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
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25. NOTICES
25.1 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.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Director of Public Works
Public Works Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Jonathan Felts
Certerra Southwest, LLC
12130 Santa Margarita Court
Rancho Cucamonga, CA 91730
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement. Consultant'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 Consultant in writing as unsettled at the time of its final request for
payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 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
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party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 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 Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant 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.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant 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 Consultant 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.
28.3 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.
28.4 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.
28.5 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.
28.6 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.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
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28.8 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.
28.9 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.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 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]
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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: ? - - /Z4_
By: Q". - M"� - -F" / -
Aaro C. Harp -tom 1'U
City ttorney
By:
Lena Shumway
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: LZ-7,erZ-7
By: ��j t/-'e
David -Webb
Director of Public Works
CONSULTANT: Certerra Southwest,
LLC, a Nevada limited liability company
By: Royal Holdco Corporation
Its: Manager
Date:
Signed in Counterpart
Anam Usman
Secretary
Date:
Signed in Counterpart
By:
Edward Lyon
Chief Executive Officer
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
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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:_/
By:�
A ron C. Harp Z- ��, Lu
City Attorney
By:
Lena Shumway
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
David Webb
Director of Public Works
CONSULTANT: Certerra Southwest,
LLC, a Nevada limited liability company
By: Royal Holdco Corporation
Its: Manager
Date: 2/ l b /L 6
By:'��—
Anam Usman
Secretary
Date:
Edward Lyon
Chief Executive Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Certerra Southwest, LLC Page 12
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: 2,/1 b 174
f-
By:
A ron C. Harp Z- (01 LU
City Attorney
Lena Shumway
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Bv:
David Webb
Director of Public Works
CONSULTANT: Certerra Southwest,
LLC, a Nevada limited liability company
By: Royal Holdco Corporation
Its: Manager
Date:
am
Anam Usman
Secretary
Date:
By: �✓
Edward , you
Chief E ecutive Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Certerra Southwest, LLC Page 12
Certerra Southwest, LLC Page A-1
r• CERTERRA
1 CSI SERVICES
Consulting Scope of Services
Certerra's Protective Coating Specialist (PCs) and Feld Coating Technician will provide technical expertise and
independent observations in support of understanding the mechanisms contributing to the paint failure identified on the
Newport Beach Library Lecture Hall. While Tnemec Coatings, the coating manufacturer is helping with suppling project
related documents, Certerra is engaged as a consultant to the City of Newport Beach and will contribute
recommendations, field documentation, and peer -level review of available data to support the ongoing investigation. Our
role is to assist in establishing an objective assessment of the failure for potential inclusion in formal reporting or litigation
proceedings.
CSI will conduct an evaluation regarding the extent to which the existing paint is failing and determine the probable nature
and principal cause(s) of the coating issue. Our work product will include a report containing the results of our findings
including our opinion regarding the cause of failure(s). This work will be accomplished by completing the following tasks,
where applicable:
1. Review of Background Information — CSI will review background information such as specifications, material and
product data sheets, application/inspection records, correspondence, and project history available in an effort
to better understand the original contract requirements and application attributes.
2. Field Investigation — CSI will examine the nature and distribution of failed and non -failed coatings. This work will
include visual examinations both with and without the aid of magnification. Other applicable tasks such as
chemical testing, adhesion testing, dry film thickness measurements, surface profile measurements, etc. will
also be completed. Samples will be collected for potential subsequent laboratory analysis. Digital photos will be
taken to document the findings of the investigation. Repairs to surfaces subjected to testing and sampling are
not a part of this work scope.
3. Laboratory Investigation — If required, laboratory examinations typically include assessment of coating type, layers,
and film characteristics (FT-IR, AA, etc.). Should it be deemed necessary to conduct extensive laboratory
analysis, CSI would discuss this option prior to undertaking this additional work. Extensive laboratory work is
not a part of this cost -proposal.
4. Report —The product of the above will be a comprehensive report that will include an Introduction, Summary, review
of Background Information, Technical Discussion of Laboratory Results (if applicable), and Conclusions.
Supporting photographs and documentation where applicable will be appended.
Inspection Scope of Services
Certerra will provide third -party quality assurance coating inspection services. This work will be accomplished by
completing the following tasks, where applicable:
Coating Verifications
Certerra will provide quality assurance inspection services during the coating work on the project. Certerra will provide
technical as -needed consulting assistance and qualified fully trained and equipped inspectors throughout the progress of
the work up to and including final acceptance. Certerra will provide an independent, professional, and thorough NACE
(AMPP) inspection. Certerra will not take any responsibility for the safety of others.
Certerra has found that it can provide its clients the most versatile and technically competent quality assurance program
through a team approach. This team of engineers, inspectors, and administrative support personnel allow us to provide an
up-to-date, competent, and efficient service product. The duty of this team approach is segmented into two tasks, which
frequently overlap. Either the field inspector or the support personnel will complete the various tasks that may be required
on this project. These two general segments of the team have been detailed below under two categories: Project Support
Activities and Direct Field Inspection Activities.
Project Support Activities
• Certerra will participate in project start-up meetings, weekly job meetings, and any special interest meetings as
required to discuss procedures, progress, problems, or outstanding issues.
• Certerra staff will provide any support to the project required to assure that all technical issues and concerns are
properly corrected and/or addressed.
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1 CSI SERVICES
Direct Field Inspection Activities
• The Certerra inspector will ensure that the requirements of the Contract Specifications and manufacturer's
technical data sheets for the various materials are strictly followed. PDCA P2-04, SSPC, NACE, and ASTM D3276
standard practices will be used a guideline for proper procedures, where not called out in the specification or
manufacturer's written PDS's.
• The Certerra inspector will ensure that the requirements of the contract specifications and manufacturer's
technical data sheets for the various materials are strictly followed. It is not the intent of our cost proposal to
provide a safety inspector to this project.
• Checking of the contractor's compliance with the specifications will be accomplished by performing the following
hold -point tasks as necessary, with the appropriate calibrated instruments for each:
o Condition of Surfaces Prior to Preparation — The Certerra inspector will inspect the surfaces to be
prepared to assure that grease and oil have been removed, and sharp edges are removed as specified.
NACE Standard SP0178 will be used as acceptance criteria where areas are of concern.
o Compressed Air Cleanliness — The Certerra inspector will check the air quality when production
includes abrasive blast cleaning, substrate blow -down, or conventional application procedures. This will be
accomplished in accordance ASTM D4285.
o Ambient Conditions — The Certerra inspector will monitor ambient conditions in accordance with ASTM
E337 to assure that final blast cleaning and all coating application operations are not completed outside
the specified requirements.
o Surface Preparation — The Certerra inspector will examine the abrasive and equipment used for surface
preparation for adequacy to do the work, as specified. Equipment pressures will be monitored. The
inspector will check proper storage and size of abrasives, and that the proper degree of cleaning and
surface profile or scarification is achieved.
o Coating Preparation and Mixing — The Certerra inspector will observe the mixing of coatings to assure
that all components are added and proportioned correctly and that any induction times are maintained.
The inspector will check that any materials used are approved and that they are not used when the pot or
shelf lives have been exceeded.
o Coating Application — The Certerra inspector will examine the application equipment for cleanliness and
adequacy to do the work. The inspector will observe application techniques to assure proper coverage
without detrimental runs, pinholes, or other visually evident deficiencies. The inspector will make spot
checks of the wet film thickness in accordance with ASTM D4414 so that adjustments to the amount of
material being applied can be made at the time of application to minimize the amount of rework after the
coating has dried.
o Dry Film Thickness — The Certerra inspector will measure the dry film thickness (DFT) of each coat to
assure that it complies with the specification requirements and manufacturers' instructions. DFTs will be
monitored using a Type II film gage in accordance with ASTM D1186, SSPC-PA2, or as required (i.e. every
100SgFt).
o Holiday Detection — Certerra will witness holiday detection and confirm performance of 100 percent
holiday detection in accordance with NACE International's "Recommended Practice for Discontinuity
(Holiday) Testing of Protective Coatings," (SP 0188-99), AWWA D102, and the specified requirements.
o Cure Evaluation — The Certerra inspector will evaluate the final cure of the applied lining in accordance
with the manufacturer's recommended procedures, and or ASTM D5402, as required.
o Final Inspection — The Certerra inspector will perform a final inspection to evaluate the Contractor's final
product. This will check that the final visual appearance (SSPC PA1), DFT measurements, holiday
detection, cure testing, and so forth meet the project requirements.
f CERTERRA
1 CSI SERVICES
Documentation - The Certerra inspector will use daily reports to clearly document the coating operations and
occurrences to verify compliance with Contract documents. At a minimum, the verifications noted above will be
recorded. Certerra will utilize our in-house App called SpecCheckTM that provides our inspector an automated
means of assuring the electronic reporting, timely delivery, and archiving of our inspection reports. The App is
unique to any other in that it not only provides a library of all project documents, but it also has an internal quality
control mechanism that assures that field verifications are correct, in real time. It also gives management an
excellent tool to better control all aspects of the inspection project. Reports can be delivered the next day, or
earlier if required.
EXHIBIT B
SCHEDULE OF BILLING RATES
Certerra Southwest, LLC Page B-1
1 CERTERRA
f CSI SERVICES
FEE SCHEDULE
Certerra proposes to provide the above Scope of Services using a fixed fee, time and materials basis in accordance with
our standard terms and conditions. The fees to complete the above Scope of Services follow:
Professional Consulting Services
Cost per Day
PCS Consulting Services (Office)
$185.00/hour
Coating Technician Services (field)
$150.00/hour
Laboratory Testing
$Cost, Plus 5%
Coating Technician Daily Travel
$100.00/day
Coating Inspection Services
Coating Inspection Services (4 hour min.)
$125.00/hour
Coating Inspection
$165.00/hour
Daily Travel Expense
$95.00/day
Consulting Fees
It is projected that full -filed day and 8-office hours will be required. It is further estimated that the above scope can be
completed including travel and miscellaneous expenses for a total not to exceed fee of $4,500.00. This does not include
any lab work, which is not anticipated. Additional expenses shall be approved in writing by the City prior to
being incurred.
Inspection Fees
We understand that the project is scheduled for up to 12 visits. On this basis, CSI projects that it can provide the above
scope of work on a time and materials basis for a total fee that should not exceed $13,140.00.
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City,
and prior to commencement of Work, Consultant shall obtain, provide and
maintain at its own expense during the term of this Contract, policies of
insurance of the type and amounts described below and in a form satisfactory
to City. Consultant agrees to provide insurance in accordance with
requirements set forth here. If Consultant uses existing coverage to comply
and that coverage does not meet these requirements, Consultant agrees to
amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned
policyholders' Rating of A- (or higher) and Financial Size Category Class VII
(or larger) in accordance with the latest edition of Best's Key Rating Guide,
unless otherwise approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation Insurance providing statutory benefits and
Employer's Liability Insurance with limits of at least one million dollars
($1,000,000) each employee for bodily injury by accident and each
employee for bodily injury by disease in accordance with the laws of
the State of California.
Consultant shall submit to City, along with the certificate of insurance,
a Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial
general liability insurance, and if necessary excess/umbrella liability
insurance, with coverage at least as broad as provided by Insurance
Services Office form CG 00 01, in an amount not less than one million
dollars ($1,000,000) per occurrence, two million dollars ($2,000,000)
general aggregate. The policy shall cover liability arising from bodily
injury, property damage, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of
another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00
01 covering bodily injury and property damage for all activities of
Consultant arising out of or in connection with Work to be performed
Certerra Southwest, LLC Page C-1
under this Contract, including coverage for any owned, hired, non -
owned or rented vehicles, in an amount not less than one million
dollars ($1,000,000) combined single limit for each accident.
D. Professional (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount
of one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity
date, or retroactive date must be before the Effective Date of this
Agreement and Consultant agrees to maintain continuous coverage
through a period no less than three years after completion of the
Services required by this Agreement.
E. Excess/Umbrella Liability Insurance. If any Excess or Umbrella
Liability policies are used to meet the limits of liability required by this
contract, then said policies shall be "following form" of the underlying
policy coverage, terms, conditions, and provisions and shall meet all of
the insurance requirements stated in this contract, including, but not
limited to, the additional insured and primary & non-contributory
insurance requirements stated herein. No insurance policies
maintained by the City, whether primary or excess, and which also
apply to a loss covered hereunder, shall be called upon to contribute to
a loss until the Consultant's primary and excess/umbrella liability
policies are exhausted.
4. Other Insurance Requirements. The policies are to contain, or be endorsed
to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Contract shall be endorsed to waive subrogation
against City, its City Council, boards and commissions, officers,
agents, volunteers and employees, or shall specifically allow
Consultant or others providing insurance evidence in compliance with
these requirements to waive their right of recovery prior to a loss.
Consultant hereby waives its own right of recovery against City, and
shall require similar written express waivers and insurance clauses
from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess/umbrella liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide
that City, its City Council, boards and commissions, officers, agents,
volunteers and employees shall be included as additional insureds
under such policies.
Certerra Southwest, LLC Page C-2
C. Primary and Non -Contributory. Consultant's insurance coverage shall
be primary insurance and/or the primary source of recovery with
respect to the City, its City Council, boards and commissions, officers,
agents, volunteers and employees. All liability coverage shall apply on
a primary basis and shall not require contribution from any insurance
or self-insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation or nonrenewal of coverage (except
for nonpayment for which ten (10) calendar days' notice is required) for
each required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to
the following:
A. Evidence of Insurance. Consultant shall provide certificates of
insurance to City as evidence of the insurance coverage required
herein, along with a waiver of subrogation endorsement for workers'
compensation and other endorsements as specified herein for each
coverage. All of the executed documents referenced in this Contract
must be returned to City within ten (10) regular City business days after
the date on the "Notification of Award". Insurance certificates and
endorsements must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Contract. The certificates and endorsements for each insurance policy
shall be signed by a person authorized by that insurer to bind coverage
on its behalf. At least fifteen (15) days prior to the expiration of any
such policy, evidence of insurance showing that such insurance
coverage has been renewed or extended shall be filed with the City. If
such coverage is cancelled or reduced, Consultant shall, within ten
(10) days after receipt of written notice of such cancellation or reduction
of coverage, file with the City evidence of insurance showing that the
required insurance has been reinstated or has been provided through
another insurance company or companies. City reserves the right to
require complete, certified copies of all required insurance policies, at
any time.
B. City's Right to Revise Requirements. The City reserves the right at any
time during the term of the Contract to change the amounts and types
of insurance required by giving Consultant ninety (90) calendar days'
advance written notice of such change. If such change results in
substantial additional cost to Consultant, City and Consultant may
renegotiate Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request,
all agreements with subcontractors or others with whom Consultant
Certerra Southwest, LLC Page C-3
enters into contracts with on behalf of City will be submitted to City for
review. Failure of City to request copies of such agreements will not
impose any liability on City, or its employees. Consultant shall require
and verify that all subcontractors maintain insurance meeting all the
requirements stated herein, and Consultant shall ensure that City is an
additional insured on insurance required from subcontractors. For
CGL coverage, subcontractors shall provide coverage with a format at
least as broad as CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no
additional obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage
features or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of any
coverage normally provided by any insurance. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains
to a given issue and is not intended by any party or insured to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
If the Consultant maintains higher limits than the minimums shown
above, the City requires and shall be entitled to coverage for higher
limits maintained by the Consultant. Any available proceeds in excess
of specified minimum limits of insurance and coverage shall be
available to the City.
F. Self -Insured Retentions. Any self -insured retentions must be declared
to and approved by City. City reserves the right to require that self -
insured retentions be eliminated, lowered, or replaced by a deductible.
Self-insurance will not be considered to comply with these
requirements unless approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City
shall have the right but not the obligation, to purchase such insurance,
to terminate this Agreement, or to suspend Consultant's right to
proceed until proper evidence of insurance is provided. Any amounts
paid by City shall, at City's sole option, be deducted from amounts
payable to Consultant or reimbursed by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Consultant's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City
assumes no obligation or liability by such notice, but has the right (but
not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City.
Certerra Southwest, LLC Page C-4
Consultant's Insurance. Consultant shall also procure and maintain, at
its own cost and expense, any additional kinds of insurance, which in
its own judgment may be necessary for its proper protection and
prosecution of the Work.
Certerra Southwest, LLC Page C-5
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