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PRODUCT AND SERVICE AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT (Agreement) is made and entered into, effective on __________, by and between the CITY OF FRESNO, a California municipal c orporation (City ), and Golden Bell Products, Inc. (Service Provider).
RECITALS
WHEREAS, City desires to enter into a product and service agreement with Service Provider to purchase Insecta A ccess S tructure (Manhole) Coating services for the treatment and prevention of cockroach infestations (Project); and WHEREAS, Service Provider is engaged in the business of furnishing such services as a m unicipal chemical provider and hereby represents that it des ires to and is professionally and legally capable of performing the services called for by this Agreement; and
WHEREAS, S ervice Prov ider acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107; and WHEREAS, this Agreem ent will be administer ed for the City by it s Collection System Maintenance Wastewater Manager, (Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:
1. Products. Service Provider hereby agrees to sell and deliver to City, and City hereby agrees to purchase and accept from Service Provider, the product listed in EXHIBIT A.
2. Scope of Services. Service Provider sha ll perform to the satisfaction of City the services described in Exhibit A, including all work inciden tal to, or necessary to perform, such services even though not specifically described in Exhibit A.
3. Term of Agreement and Time for Perfo rmance. This Agreement shall be effective from the date first set forth above (Effect ive Date) and shall continue in full force and effect for an initial term running through June 30, 2027. Thereafter, if mutually agreed upon, the parties have the option to extend this agreement in one-year increments, for up to three additional years; subject to any earlier termination in accordance with this Agreement. Any extension must be provided in writing. The services of Service Provider as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A.
4. Compensation.
(a) Service Provider’s sole compensati on for satisfactory performance of all services required or rendered pursuant to this Agreement and shall not exceed $99,000, paid on the basis of the rates set forth in the schedule of DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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fees and expenses contained in Exhibit A. Such fee includes all expenses incurred by Service Provider in performance of the services. (b) Detailed statements shall be rendered m onthly for services performed in the preceding month and will be payable in the normal course of City business.
City shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agre ement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification sha ll include an adjustment to Service Provider’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Service Pr ovider shall not be entitled to any additional compensation if services are performed prior to a signed written amendment.
5. Termination, Remedies , and Force Majeure.
(a) This Agreement shall terminate without any liability of City to Service Provider upon the earlier of : (i) Service Provider’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against Service Provider; (ii) seven calendar days’ prior written notice with or without cause by City to Service Provider; (iii) City’s non- appropriation of funds su fficient to meet its obligations hereunder during any City fisc al year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments and all pr operties and materials in the possession of Service Provider that are owned by City. Subject to the terms of this Agreement, Service Provider shall be paid compensation for services satisfactorily performed prior to the effective date of termination. Service Provider shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided.
(c) In the event of termination due to failure of Service Provider to satisfactorily perform in accordance with the terms of this Agreement, City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, City’s damages caused by such failure. In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Service Provider, nor shall such payment impair or prejudice any remedy available to City with respect to the breach.
(d) Upon any breach of this Agreem ent by Service Provider, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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terms of the Agreement; and/or ( iii) recover all direct, indirect, consequential, economic and incidental damages for t he breach of the Agreement. If it is determined that City improperly terminated this Agreement for default, such terminat ion shall be deemed a termination for convenience.
(e) Service Provider shall provide Cit y with adequate written assurances of future performance, upon Administrato r’s request, in the event Service Provider fails to comply with any terms or conditions of this Agreement. (f) Service Provider shall be liable fo r default unless nonperformance is caused by an occurrence beyond the reasonable control of Service Provider and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Service Provider shall notify Administrator in writing as soon as it is reasonably possible after the comm encement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence.
6. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by Service Provider pursuant to this Agreement shall not be made available to any individual or organization by Service Provider without the prior written approval of the Administrator. Duri ng the term of this Agreement, and thereafter, Service Provider shall no t, without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of City, in cluding but not limited to business plans, marketing plans, financial info rmation, materials, compilations, documents, instruments, models, s ource or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City.
(b) Any and all writings and documents prepared or provided by Service Provider pursuant to this Agreement ar e the property of City at the time of preparation and shall be turned over to City upon expiration or termination of the Agreement. Service Provider shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 6. (d) This Section 6 shall survive expira tion or termination of this Agreement.
7. Level of Skill. It is further mut ually understood and agreed by and between the parties hereto that inasmuch as Service Pr ovider represents to City that Service Provider and its subcontract ors, if any, are skilled in the profession and shall DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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perform in accordance with t he standards of said indust ry necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Service Provider and its subcontra ctors, if any, to do and perform such services in a skillful manner and Service Provider agrees to thus perform the services and require the same of any s ubcontractors. Therefore, any acceptance of such services by City shall not operate as a release of Service Provider or any subcontractors from said industry and professional standards.
8. Indemnification. To the fu rthest extent allowed by la w, Service Provider shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, deat h at any time and property damage), and from any and all claims, demands and ac tions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Service Provider, its principals, officers, employees, agents, or volunteers in the performance of this Agreement.
If Service Provider should subcontract a ll or any portion of the services to be performed under this Agr eement, Service Provider shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteer s in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
9. Insurance.
(a) Throughout the life of this Agreemen t, Service Provider shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or ( ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those am ounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full lim it of any insurance proceeds to the named insured.
(b) If at any time during the life of t he Agreement or any extension, Service Provider or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediatel y, and all payments due or that become due to Service Provider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insu rance shall be sufficient cause for City DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provi der of its responsib ilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had pr oceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to a ll claims and liability regardless of whether any insurance policies are app licable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, its principals, officers, agents, employees, or persons under the supervision of Service Provider, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) Upon request of City, Service Provi der shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
(e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Serv ice Provider shall require each subcontractor/sub-consultant to prov ide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with Service Provider and City prior to the commencement of any services by the subcontractor. Service Provider and any subcontractor/sub- consultant shall establish additional insured status for City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.
10. Conflict of Interest and Non-Solicitation.
(a) Prior to City’s execution of this Ag reement, Service Provider shall complete a City of Fresno conflict of interest di sclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, Service Provider shall have the obligation and duty to immediat ely notify City in writing of any change to the information provided by Service Provider in such statement. (b) Service Provider shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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conflict of interest laws and regulat ions including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 Ca lifornia Code of Regulati ons Section 18700 et. seq.). At any time, upon written reques t of City, Service Provider shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Serv ice Provider and the respective subcontractor(s) are in full compliance with all laws and regulations. Service Provider shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Service Provider shall immediately notify City of these facts in writing.
(c) In performing the work or servic es to be provided hereunder, Service Provider shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved.
(d) Service Provider represents and warr ants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Service Provider and any of its subc ontractors shall have no interest, direct or indirect, in any other contract wit h a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manage r, in advance and in writing.
Notwithstanding any approval given by the City Manager under this provision, Service Provider shall re main responsible for complying with Section 10(a), above.
(f) If Service Provider should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Service Provider shall include the provisions of this Section 10 in each subcontract and require its subcontractors to comply therewith.
(g) This Section 10 shall survive expirati on or termination of this Agreement.
11. Recycling Program. In the ev ent Service Provider maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Service Prov ider at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111.
DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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(b) Immediately contact City’s Solid Waste Management Division at (559) 621- 1452 and schedule a free waste audit and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstr ate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof.
12. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of Service Provider’s expenses pertaining to the Project shall be kept on a generally recognized account ing basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreem ent and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Service Provider pertaining to the Project shall be available fo r the purpose of making audits, examinations, excerpts, and transcripti ons for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is re solved, or until the end of said time period whichever shall later occur. If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each s ubcontractor to also comply with the requirements of this paragraph. This Se ction 12(b) shall survive expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by City, Service Provider shall have provided evidence to City that Service Provider is licensed to perform the services called for by this Agreement (or that no license is required). If Service Provider should subcontract all or any portion of the work or services to be performed under this Agreement, Service Provider shall require each subcontractor to provide evidence to City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work.
13. Nondiscrimination. To the extent r equired by controlling federal, state and local law, Service Provider shall not employ di scriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vi etnam era. Subject to the foregoing and during the performance of this Agreement, Service Provider agrees as follows:
(a) Service Provider will comply wit h all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disa bility, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of , or be subject to discrimination under any program or activity made pos sible by or resulting from this Agreement.
(b) Service Provider will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual or ientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Service Provider shall ensure that applicants are employed, and the employees ar e treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medica l condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement s hall apply to Service Provider’s employment practices including, but not be limited to , the following:
employment, upgrading, demot ion or transfer; recrui tment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Service Provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setti ng forth the provision of this nondiscrimination clause.
(c) Service Provider will, in all solicit ations or advertise ments for employees placed by or on behalf of Service Provi der in pursuit hereof, state that all qualified applicants will receive cons ideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medica l condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) Service Provider will send to each l abor union or representative of workers with which it has a collective bargaini ng agreement or ot her contract or understanding, a notice advising su ch labor union or workers' representatives of Serv ice Provider’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 13.
14. Independent Contractor.
(a) In the furnishing of the services pr ovided for herein, Service Provider is acting solely as an independent contract or. Neither Service Provider, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of City for any purpose. City shall have no right to control or supervi se or direct the manner or method by which Service Provider shall perf orm its work and functions. However, City shall retain the right to administer this Agreement so as to verify that DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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Service Provider is performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or jo int venture between Service Provider and City. Service Provider shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Service Provider shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an inde pendent contractor, Service Provider and its officers, agents, and employees shall have absolutely no right to employment rights and benefits availa ble to City employees. Service Provider shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits.
In addition, together with its other obligations under this Agreement, Service Provider shall be solely responsibl e, indemnify, defend and save City harmless from all matters relating to employment and tax withholding for and payment of Service Provider’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/ or funds offered empl oyees of City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that dur ing the term of this Agreement, Service Provider may be providing services to others unrelated to City or to this Agreement.
15. Notices. Any notice requir ed or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsim ile followed by telephone confirmation of receipt, or sent by United States registered or certifi ed mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may fr om time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof.
16. Binding. Subject to Secti on 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.
17. Assignment.
(a) This Agreement is personal to Serv ice Provider and there shall be no assignment by Service Provider of it s rights or obligations under this Agreement without the pr ior written approval of the City Manager or designee. Any attempted assignment by Service Provider, its successors or DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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assigns, shall be null and void unless approved in writing by the City Manager or designee.
(b) Service Provider hereby agrees not to assign the payment of any monies due Service Provider from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Service Provider directly to Service Provider.
18. Compliance With Law. In providing the services required under this Agreement, Service Provider shall at all times comply with all applicable laws of the United States, the State of California and Cit y, and with all applic able regulations promulgated by federal, st ate, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
19. Waiver. The waiver by either party of a br each by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
20. Governing Law and Venue. This Agr eement shall be governed by, and construed and enforced in accordance with, the laws of the State of Calif ornia, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California.
21. Headings. The section headings in th is Agreement are fo r convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.
22. Severability. The provisi ons of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.
23. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parti es and that, should any provision of this Agreement be found to be ambi guous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
24. Attorney's Fees. If either party is r equired to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
25. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.
26. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
28. No Third Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are in tended for the specific parties hereto as identified in the preamble of this Agreem ent. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
29. Extent of Agreement. Each party a cknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiati ons, representations or agreements, either written or oral. This Agreement ma y be modified only by written instrument duly authorized and executed by both City and Service Provider.
30. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A ALL-B GSP Agt Not to Exceed (12-2022)
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:
Brock D. Buche, PE, PLS,
Director of Public Utilities
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Angela M. Karst Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Deputy Date
Addresses:
City:
City of Fresno
Attention: Art Alvarez, Wastewater
Manager, Certified
5607 W. Jensen Ave.
Fresno, CA 93706
Phone: (559) 621-1270
E-mail: [email protected]
Golden Bell Products, Inc.,
a California Corporation
By:
Name: Murrill G. Adams
Title: Owner, President
(If corporation or LLC., Board Chair,
Pres. Or Vice Pres.)
By:
Name: Michelle Webster-Holick
Title: Vice President, Secretary
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Service Provider:
Golden Bell Products, Inc.
Attention: Michelle Webster-Holick
952 N. Batavia St.
Orange, CA 92867
Phone: (714) 363-3985
E-mail:
[email protected]
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A 5/18/2023
5/19/2023
5/22/2023
Clerk Attesting
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EXHIBIT A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and Golden Bell Products, Inc.
Insecta Access Structure (Manhole) Coating
Golden Bell to apply Insecta cockroach pesticide to the inte riors of approximately 3,800 identified sanitary sewer access structures in Fiscal Year 2023 as pa rt of a three-year cycle; upon completion of the cycle’s three phases, approximately half of all City-owned sanitary sewer access structures will have been treated.
As has been done annually since 2013, Collection System Maintenance (CSM) will supply Golden Bell with printed maps/lists of the identified access structures to be treated during that phase. Upon completion of work, Golden Be ll will return the provided maps/lists to report the extent of access st ructures treated. Should any of the identified access structures not have been treat ed in the current phase, due to budget constraints or otherwise, CSM will work with Golden Bell to det ermine if said access structures will be added to the next phase of the cycle.
DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
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EXHIBIT B
INSURANCE REQUIREMENTS
Service Agreement between City of Fresno (City)
and Golden Bell Products, Inc. (Service Provider)
Insecta Access Structure (Manhole) Coating
MINIMUM SCOPE OF INSURANCE
(a) Throughout the life of this Agreement, Serv ice Provider shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admi tted by the California Insurance Commissioner to do business in the State of California and ra ted no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as ma y be authorized in writing by City's Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified t herein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Ag reement or any extension, Service Provider or any of its subcontractor fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payment s due or that become due to Service Provider shall be withheld until notice is received by Cit y that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, wit hout limitation, notif ication received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Serv ice Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liabilit y 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 Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, vendors, suppliers, invitees, consultants, subcontractor or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insur ance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
ALL-B GSP Agt Not to Exceed (12-2022)
arising out of your business operati ons. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, wit hout limitation, indemnit y obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”
2. The most current version of ISO Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).
3. Workers’ Compensation insurance as required by the Stat e of California and Employer’s Liability Insurance.
MINIMUM LIMITS OF INSURANCE
Service Provider shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance wit h limits of liability not less than those set forth below.
However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be t he greater of the mini mum limits specified herein or the full limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bod ily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
2. COMMERCIAL AUTOMO BILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation Insurance as required by the St ate of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event Service Provider purchases an Um brella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
ALL-B GSP Agt Not to Exceed (12-2022)
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Service Provider shall be responsible for pay ment of any deductibles contained in any insurance policy(ies) required herein and Service Provider s hall also be responsible for payment of any self-insured retentions. Any se lf-insured retentions must be declared on the Certificate of Insurance and approved by the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either:
(i) The insurer shall reduce or elimi nate such self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Service Provider shall provide a fi nancial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to City, except ten (10) days for nonpayment of premium. Service Provider is also responsible for providing wri tten notice to the City under the same terms and conditions. Upon i ssuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Service Provider shall furnish City with a new certificate and applicable endorsements for such policy(ies). In t he event any policy is due to expire during the work to be performed for Cit y, Service Provider shall provide a new certificate, and applicable endorse ments, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
(ii) The Commercial General and Automob ile Liability insurance policies shall be written on an occurrence form.
(iii) The Commercial General and Automob ile Liability insurance policies shall be endorsed to name City, its officers , officials, agents, employees, and volunteers as an additional insured. Service Provider shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial Gener al endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20
37. (iv) The Commercial General and Automob ile Liability insurance shall contain, or be endorsed to contain, that the Service Provider s’ insurance shall be primary to and require no contributi on from the City. The Commercial DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A
ALL-B GSP Agt Not to Exceed (12-2022)
General policy is required to include primary and non-contributory coverage in favor of the City for both the ongoing and completed operations coverage.
These coverages shall contain no special limitations on the scope of protection afforded to City, its office rs, officials, employees, agents, and volunteers. If Service Provider mainta ins higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by Service Provider. (v) Should any of these policies provi de that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
(vi) For any claims related to this Agreement, Service Provider’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, agents, employees, and vo lunteers. Any insurance or self- insurance maintained by the City, its officers, offi cials, agents, employees, and volunteers shall be excess of the Service Provider’s insurance and shall not contribute with it.
(vii) The Commercial General Liabilit y, Automobile Liability and Workers’ Compensation insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers.
PROVIDING OF DOCUMENTS - Service Provider shall furnish City with all certificate(s) and applicable endorsements effecting coverage required herein. A ll certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non- ISO endorsements amending policy coverage s hall be executed by a licensed and authorized agent or broker. Upon request of City, Service Pr ovider shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of Service Provider shall also be required to provide all documents noted herein.
SUBCONTRACTORS - If Service Provider subcont racts any or all of the services to be performed under this Agreement, Service Provider shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide requi red indemnification and insuranc e protection. Any required Side Agreement(s) and associated insurance doc uments for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is required, Service Provider will be solely responsible for ens uring that its subcontractor maintains insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.
DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A ALL-B GSP Agt Not to Exceed (12-2022)
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Insecta Access Structure (“Manhole”) Coating
YES* NO
1 Are you currently in litigation wi th the City of Fresno or any of its agents?
2 Do you represent any firm, or ganization, or person who is in litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno?
5 Are you or any of your princi pals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indire ct, in any other contract in connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Date
Michelle Webster-Holick
Name
Golden Bell Products, Inc.
Company
952 N. Batavia St.
Address
Additional page(s) attached. Orange, CA 92867
City, State, Zip
DocuSign Envelope ID: DF9B1A8E-9945-4481-BB1B-EFECC627533A X
X
X
X
5/18/2023
X
n/a
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