HomeMy WebLinkAbout5M CONTRACTING, INC.INSURANCE ON FILE
WORK MAY PROCEED
UNTIL INSURANCE EXPIRES
(',714A l-
CLERK OF COUNCIL
DATE:
N-2023-105
oOAA)Z
AGREEMENT WITH 5M CONTRACTING, INC., TO PROVIDE ASBESTOS
ABATEMENT AND REMEDIATION SERVICES AT 419 FRANKLIN STREET
e� THIS AGREEMENT is made and entered into on this 12th day of April, 2023 by and between 5M
Contracting, Inc., 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").
a RECITALS
Q
A. The City desires to retain a contractor having special skill and knowledge in the field of
asbestos abatement and remediation.
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 consulting 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 during the term of this Agreement, the tasks and obligations
including all labor, materials, tools, equipment, and incidental customary work required to fully
and adequately complete the abatement and remediation services described and set forth in 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 for
City, the rates and charges identified in Exhibit A. The total amount to be expended
during the term of this Agreement shall not exceed Forty -Nine Thousand, Five Hundred
Dollars and Zero Cents ($49,500.00).
b. Payment by City shall be made within forty-five (45) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures.
c. Payment need not be made for work which fails to meet the standards of performance
set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and expire on June 30,
#19793v4 Page 1 of
2023, unless terminated earlier in accordance with Section 15, below.
4. INDEPENDENT CONTRACTOR
Contractor shall, during the entire tern 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.
5. 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.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall procure
and maintain for the duration of the contract insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work
hereunder and the results of that work by Contractor, their agents, representatives, employees or
subcontractors.
a. Minimum Scope and Limit of Insurance
(1) 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.
#19793v4 Page 2 of 9
(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) Professional Liability (Errors and Omissions): Insurance appropriate to the
Contractor's profession, with a limit no less than $1,000,000 per occurrence or claim,
$2,000,000 aggregate.
(5) Broader Coverage: if 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 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
(1) Additional Insured Status: The City, its officers, officials, employees, and volunteers
are to be covered as additional insureds on the COL policy with respect to liability
arising out of work or operations performed by or on behalf of Contractor including
materials, parts, or equipment famished in connectionwith such work or operations.
General liability coverage can be provided in the form of an endorsement to
Contractor's insurance (at least as broad as ISO Form CG 20 10 1185 or ifnotavailable,
through the addition of both CG 20 10, CG 20 26, CG 20 33, or CO 20 38; and CG 20
37 if a later edition is used).
(2) Primary Coverage: For any claims related to this contract, 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 Contractor's insurance and shall not contribute with it.
(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 waiver of subrogation, but this
provision applies regardless of whether or not the City has received a waiver of
subrogation endorsement from the insurer.
#19793v4 Page 3 of 9
(5) Self -Insured Retentions: Self -insured retentions must be declared to and approved by
the City. The City may require the Contractor 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: hisurance 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:VII,
unless otherwise acceptable to the City.
(7) Claims Made Policies: If any of the required policies provide claims -made coverage:
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 five (5) years after completion of the contract of work.
iii. if coverage is canceled or non -renewed, and not replaced with another clainis-
made policy form with a Retroactive Date prior to the contract effective date,
Contractor must purchase "extended reporting" coverage for a minimum offive
(5) years after completion of work.
(8) Verification of Coverage: Contractor shall famish the City with original Certificates
of Insurance including all required amendatory endorsements (or copies of the
applicable policy languge effecting coverage requiredby this clause) and a copy of the
Declarations and Endorsement Page of the CGL policy listing allpolicv endorsements
to City before work begins. However, failure to obtain the required documents prior to
the work beginning shall not waive Contractor's obligation to provide them.
The Cityreserves the right to require complete, certified copies of all required insurance
policies,including endorsements required by these specifications, at any time,
(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.
7. 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
#19793v4 Page 4 of 9
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, its subcontractors, agents, employees, or other persons
acting on its 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 patty
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 out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Contractor shall defend and indemnify the City, its officers, agents, representatives, and
employees against any and all liability, including costs, for infringement of any United States'
letters patent, trademark, or copyright infringement, including costs, contained in the work product
or documents provided by Contractor to the City pursuant to this Agreement.
9. 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. 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.
10. 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
Page 5 of 9
#19793v4
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.
11. CONFLICT OF INTEREST CLAUSE
Contractor covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance of services specified under this
Agreement.
12. NON-DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, gender identity, gender expression, gender, medical conditions, genetic
information, or military and veteran status, age, national origin, ancestry, or disability, as defined
and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization,
promotion, termination or other employment related activities or any services provided 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.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Contractor, 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 terns
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 is not embodied herein.
14. 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 which are the subject to this
Page 6 of 9
#19793v4
Agreement performed by City personnel or by other Contractors retained by City.
15. 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(s) 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 which fails to meet the standard of
performance specified in the Recitals of this Agreement.
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.
17. 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.
18. 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.
19. 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
#19793v4 Page 7 of 9
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:
Cleric of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
Fax:714-647-5635
To Contractor:
5M Contracting Company
2681 Dow Avenue, Suite C-1
Tustin, CA 92780-7230
Fax: 714-730-6760
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
time frames, weekends, federal, state, County or City holidays shall be excluded.
20. 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 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. The Agreement is the final and complete agreement and any prior or
contemporaneous agreements for similar services between the parties is superseded
by this Agreement. This shall not apply where the Parties are currently engaged
and Contractor is providing services not contemplated by this Agreement.
419793v4 Page 8 of 9
c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ennife . all
aty Clerk
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Bran on Satvatierra
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
a- : M44.
abit Saba
Executive Director
Public Works Agency
CITY OF SANTA ANA
IGTR—gne Yidge
City Manager
CONTRACTOR:
}
By
Title:
Ae"I1-I-411
Page 9 of 9
#19793v4
EXHIBIT A
Client
City of Santa Ana
20 Civic Ccnter Plaza
Santa Ana, CA 9270
Attu: Arne Cvek
A CALIFORNIA COMPANY
Remediation Specialists
Estimate
Estimate #: 5M23-247
Date: 4/6/2023
Project:
419 Franklin St
Scope of Work:
Qty
Cost
Total
5M Contracting, Inc. and associates is pleased to provide abatement for your project at 419 Franklin
Street in Santa Ana, CA.
ACM (not to exceed):
- Transile Shingles (6,950st)
- Mastic (2,500st)
The following are normal inclusions (abatement):
AGENCY NOTIFICATION:
- AQMD notification
- osha notification
CONTAINMENT:
-establish control of properties (caution/asbestes tape)
-create individual containments
-establish negative air as needed
-provide electricity and water
-decontamination units (with shover facilities)
FINAL CLEANING and WASTE:
-final cleaning for visual clearance
-waste bag -out
-waste packaging
-manifesting
-disposal and transportation
DOCUMENTATION:
-5M Contracting report of final work
-manifesting of waste
-assemble owner response for "hazardous waste"
Abatement:
1
45,500.00
45,500.00
Third Party Survey
1
1,500.00
1,500.00
Bond 5%
1
2,500.00
2,500,00
subject to me tollowing stipulations:
Abatement: Client will provide all necessary water and power unless otherwise provided above. Client will facilitate our work by removing all furniture and other
items subject to damage or blocking access. Client will provide any necessary EPA numbers for disposal ofhamnious waste.
We will comply with all applicable regulatory requirements and provide all necessary agency notifications, We will not be liable for incidental damages caused to
finishes by the work. Some staples and tape residue will be considered "incidental damage'. All work will be completed in a workmanlike manner according to
standard practices, All abatement workers will be trained and certified to remove asbestos andtor lead,
Customer Signature
2681 Dow Avenue, Suite C-I * Tustin, CA 92780-7230 * 714-730-6760 * 714- 730-1697 Fax
Page 1
Client:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 9270
Attn: Arne Cvek
CALIFORNIA COMPANY
Remediation Specialists
Estimate
Estimate #: 5M23-247
Date: 4/4/2023
Project:
419 Franklin St
Scope of Work:
Qty
Cost
Total
This is a Prevailing Wage project
Ron McDaniel
ronQSmcontracting.org
Cslb # 962390
Dosh# 894
SBE# 2003806
Our 5M DIR# 1000002286
$49,500.00
Subject to the following stipulations:
Abatement: Client will provide all necessary water and power unless otherwise provided above. Client will facilitate our work by removing all furniture and other
items subject to damage or blocking access. Client will provide any necessary EPA numbers for disposal ofhaseudous waste.
We will comply with all applicable regulatory requirements and provide all necessary agency notifications. We will not be liable for incidental damages caused to
finishes by the work. Some staples and tape residue will be considered "incidental damage". All work will be completed in a workmanlike manner according to
standard practices. All abatement workers will be trained and certified to remove asbestos and/or lead.
Customer Signature
2681 Dow Avenue, Suite C-I * Tustin, CA 92780-7230 * 714-730-6760 * 714- 730-1697 Fax
Page 2
Rodriguez, Teresa
From: City of Santa Ana <certificate-request@ctrax.jdidata.com>
Sent: Thursday, April 20, 2023 10:04 AM
To: Kade@5MContracting.org; Cvek, Arne; Christine.torrance@usi.com; Ortiz, Michael;
Rodriguez, Teresa
Subject: Internal Notice of Compliance
__ _.__. ___ ._ _ _-
x
NOTICE OF COMPLIANCE
CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL
Contractor 5M Contracting Inc
Name:
Project TBD (044)
Number:
Project Agreement With 5M Contracting, Inc., To Provide Asbestos Abatement
Name: And Remediation Services At 419 Franklin Street
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:
TYPE OF INSURANCE
AUTOMOBILE LIABILITY
GENERAL LIABILITY
PROFESSIONAL LIABILITY
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
Thank you,
City of Santa Ana
POLICY EXPIRATION COI DATE
NUMBER DATE
EF1CA00046231 01/01/2024 04/06/2023
EF1ML00168231 01/01/2024 04/06/2023
EFlMLOO168231 01/01/2024 04/06/2023
9330685 01/01/2024 04/06/2023
FILE NAME
�li1111=02
Contracting_GL,AL, WC_Exp_01-
01-2024.pdf
Certificate Of Insurance For City
of Santa Ana.pdf
_COI 5M
Contracti ng_G L,AL, W C_Exp_Ol-
01-2024.pdf
Certificate Of Insurance For City
of Santa Ana.pdf
t
Risk Management Division
in partnership with
CTrax Plus Services Team
4/20/2023 1:04 PM