Loading...
HomeMy WebLinkAboutContract 1642 , (6,qati AGREEMENT FOR PURCHASE AND SALE, EQUIPMENT RENTAL AND SERVICES BY AND BETWEEN CATHEDRAL CITY AND ORIGIN PETROCHEM MANUFACTURING,INC. THIS AGREEMENT FOR PURCHASE AND SALE, EQUIPMENT RENTAL, AND SERVICES (hereinafter, the "Agreement"), is made and entered into this 22nd day of June, 2015 (hereinafter, the "Effective Date"), by and between Cathedral City, a municipal corporation located in the County of Riverside, State of California (hereinafter, the "City"), and Petrochem Manufacturing, Inc., a Nevada corporation authorized to conduct business in California (hereinafter, "PMI"), with City and PMI together sometimes hereinafter referred to as the"Parties." RECITALS: WHEREAS, PMI supplies Type II Rubberized Emulsion Aggregate Slurry (REAS) (hereinafter, the "Central Mix") that is centrally mixed in accordance with Section 203- 5.5.3 of the "Greenbook" Standard Specifications for Public Works Construction 2012 Edition (hereinafter, the "Greenbook"), agitated storage tanks, and pumpers with personnel to operate the pumpers; and WHEREAS, the City has awarded or is about to award a contract for City Project No. 8901 to a qualified and licensed contractor (hereinafter, "Contractor"), which project requires, among other things, installation of City-supplied Central Mix (hereinafter, the "Project"); and WHEREAS, the City is in need of Central Mix, two (2) agitated storage tanks, one (1) pumper who will operate the pump for the purpose of transferring the Central Mix from the delivery trucks to the storage tanks, which transfer will be completed at the location designated by the City,in Cathedral City; and WHEREAS, PMI desires to sell to the City and the City desires to purchase from PMI, up to 20,000 gallons of Central Mix for each day Contractor will be required by the City to complete the Project;and WHEREAS, the Parties acknowledge that there may be certain days when the Contractor will use less than 20,000 gallons of the Central Mix in which event the City may need less than 20,000 gallons the following day, it being understood that the City will contact PMI at the end of each day Contractor uses the Central Mix for the Project and will notify PMI of the amount of Central Mix to be delivered the following day; and WHEREAS, PMI also desires to rent to the City and the City desires to rent from PMI, two (2) agitated storage tanks and one (1) pumper, in connection with the transfer of the Central Mix into on-site rental agitated storage tanks;and 1 WHEREAS, the rental rates for the agitated storage tanks, pump and pumper will include any costs for fuel and maintenance thereof; and WHEREAS, PMI and the City of Los Angeles (hereinafter, "Los Angeles") had previously entered into a contract, as amended by that certain letter submitted by Los Angeles to PMI dated March 31, 2015, a copy of which is attached hereto and incorporated herein by this reference as Exhibit "A," that required PMI to offer to other governmental agencies the same pricing received by Los Angeles, for purchase of the Central Mix and rental of the agitated storage tankers; and WHEREAS, PMI's contract with Los Angeles, as amended, provides that PMI shall offer governmental agencies like the City a price of $2.15 per gallon for the purchase of Central Mix,plus an additional 26 cents per gallon for delivery charged from PMI's plant located in the City of South Gate, California, to the City of Cathedral City, California;and WHEREAS, the total estimated charge to the City for purchase of the Central Mix (including sales taxes) and for rental of the Equipment, all based on an estimated five (5) days needed for Contractor to complete the Project which time period may either be shorter or longer, is Two Hundred Twenty Three Thousand One Hundred Fifty Five Dollars ($223,155), as described in the Summary of Charges, attached hereto and incorporated herein by this reference as Exhibit "B." NOW, THEREFORE, in consideration of the covenants, conditions and promises contained herein and for such other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows: Section 1. RECITALS The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth in full herein. Section 2. PURCHASE,SALE AND DELIVERY OF CENTRAL MIX PMI hereby sells to the City, and the City hereby purchases from PMI, up to 20,000 gallons of Central Mix for each day Contractor performs work on the Project, at a cost of Two Dollars and 15/100 Cents ($2.15) per gallon (hereinafter, "Purchase Price") plus tax (the Purchase Price and sales taxes are estimated to be $187,480), plus an additional 26 cents per gallon in connection with the delivery of the Central Mix for delivery charged from PMI's plant located in the City of South Gate, California, to Cathedral City, California (estimated to be $20,800) . All deliveries of the Central Mix shall be made in accordance with any and all applicable transportation requirements set forth in the Greenbook. In consideration for payment of the Purchase Price, PMI shall make deliveries of up to seven (7) deliveries per week, as directed by the City in the City's sole and absolute discretion, of up to 20,000 gallons of Central Mix per each delivery to the location within Cathedral City that is designated by the City as the delivery location. The City will contact PMI at the end of each day Contractor performs work for the Project and will notify PMI of the amount of Central Mix to be delivered the following morning. 2 Each and every delivery of Central Mix must be made between the hours of 5:00AM to 8:00 PM. PMI agrees to supply the City with daily delivery weight tickets upon each delivery-of Central Mix to the site and upon return to PMI's plant. Section 3. RENTAL OF EQUIPMENT; USE Subject to Section 6 below, PMI hereby rents to the City, and the City hereby rents from PMI, two (2) 10,000 gallon agitated storage tanks, one slurry pump and one (1) pumper (together, hereinafter, the "Equipment"), for the duration of the Rental Term (as defined in Section 5 below), for the amount of One Thousand Dollars and No Cents ($1,000.00) per diem for each storage tank (estimated to be $10,000 total at 5 days), Five Hundred Dollars and No Cents ($500.00) per diem for the slurry pump (estimated to be $2,500 total at 5 days) and Four Hundred Seventy Five Dollars and No Cents ($475.00) per diem for the pumper (estimated to be $2,375 at 5 days). During the Rental Tenn, the storage tanks will be used to store the Central Mix, and, the pump will be used by the pumper to pump the Central Mix from the delivery trucks to the storage tanks. Notwithstanding anything else to the contrary, the City will be charged for rental of the Equipment for days the Equipment is not used for the Project (ie. days Contractor does no work for the Project such as weekends). Section 4. DELIVERY AND PICK UP OF STORAGE TANKS PMI shall deliver and pick up to and from the location designated by the City, at no charge to the City, the two (2) agitated storage tanks, the slurry pump, and t h e pumper. PMI expressly acknowledges that any drivers for delivery and pick up shall provide these services on an independent contractor's basis,as respecting the City. Section 5. TERM PMI shall deliver the initial shipment of Central Mix and the Equipment by no later than October 19, 2015 to the location within Cathedral City designated by the City. The City shall be charged for rental of the Equipment commencing on October 19, 2015 until the City provides PMI notice that the Equipment is no longer required by the City (hereinafter, "Rental Term") after completion of the Project. It is expected that the City shall be able to provide said notice on or about October 23, 2015; however, the Parties expressly acknowledge the possibility that the Project could be completed either before or after this date. Upon PMI's receipt of notice that the Equipment will no longer be needed by the City, PMI shall remove the Equipment for delivery back to PMI's plant within five (5) business days. Section 6. SCHEDULE OF WORK After the initial delivery of the Central Mix and the Equipment by no later than October 19, 2015, commencing on October 19, 2015 until completion of the Project, PMI shall make deliveries of the Central Mix sufficient to allow Contractor to complete the Project within the time required by City Project No. CP 12-268, of up to seven (7) days per week as directed and determined by the City in the City's sole and absolute discretion,it being 3 understood that Contractor is likely to provide services for the Project Mondays through Saturdays only. All services for operation of the pumper will be provided on the days Contractor provides services for the Project. Section 7. MEASUREMENT OF PURCHASED CENTRAL MIX; METHOD OF PAYMENT a. PMI shall invoice the City for the purchase and sale of the Central Mix and any other applicable charges, and rental of the Equipment, after all the Equipment is returned to PMI. The invoice shall include a detailed listing and description of all charges and the items to which the charges relate. b. PMI shall be paid the amount specified in the invoice within thirty (30) days of receipt by the City, provided that the descriptions contained in the invoice are reasonably satisfactory to the City,in accordance with the terms of this Agreement. c. The amount of Central Mix purchased by the City from each delivery and invoiced by PMI shall be calculated as follows: the empty truck (with full tank of fuel) shall be weighed at PMI's plant and then weighed again after filling the truck with the Central Mix that is to be delivered to the location designated by the City —this process will measure the weight in pounds of Central Mix to be delivered (hereinafter, "Delivered Central Mix"); after the Delivered Central Mix is delivered to the City, PMI shall return the truck to its plant, fully refuel the truck, and then the truck and any Central Mix remaining in the truck shall be weighed again — this process will measure the amount of the Delivered Central Mix, if any, not used by the City (hereinafter, "Unused Central Mix"); the amount reflected as the Unused Central Mix shall then be subtracted from the Delivered Central Mix amount which result will measure the amount of Central Mix used by the City for any given delivery (hereinafter, "Used Central Mix"); the amount of Used Central Mix (measured in pounds) shall then be divided by 13.5 pounds per gallon which will net the amount of gallons of Central Mix purchased by the City and to be reflected in any invoice. Section 8. INDEPENDENT CONTRACTOR'S STATUS: NOT AGENT OF THE CITY PMI shall at all times during the term of this Agreement remain, as to the City, a wholly independent contractor, shall perform the services described in this Agreement as an independent contractor, and hereby waives any claims for any compensation or benefits afforded to the City's employees and not to independent contractors. Neither the City nor any of its agents shall have control over the conduct of PMI or any of PMI's employees or independent contractors, except as herein set forth. Nothing contained in this Agreement shall be deemed, construed or represented by the City or PMI or by any third person to create the relationship of principal and agent and PMI shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. PMI shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall PMI have any authority, express or implied, to bind the City to any obligation whatsoever. 4 Section 9. REPRESENTATIONS AND ACKNOWLEDGMENTS REGARDING INDEPENDENT CONTRACTOR'S STATUS OF PMI a. PMI represents and acknowledges the following: 1) The City is not required to provide any training or legal counsel to PMI or its employees in order for PMI to perform the services described in this Agreement. 2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City. 3) The services described in this Agreement can be performed without the use of City equipment, materials or tools. 4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with PMI on a continuing basis after termination of this Agreement. 5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage or other such compensation to any person employed or retained by PMI to perform the services described in this Agreement. 6) PMI shall not at any time or in any manner represent that it or any of its officers, employees, or agents are"employees" of the City. b. The City represents and acknowledges the following: 1) PMI is not required to comply with daily instructions from City staff with respect to when, where or how PMI must perform the services set forth in this Agreement, except to the extent that may be otherwise provided herein. 2) PMI is solely responsible for determining who, under the supervision or direction of PMI,will perform the services set forth in this Agreement. 3) The City will not hire, supervise or pay any assistants working for PMI pursuant to this Agreement. 4) Nothing in this Agreement shall be interpreted to imply that PMI must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement. 5) Nothing in this Agreement shall be interpreted to preclude PMI from working for other persons or firms, provided that such work does not create a conflict of interest. 5 6) PMI is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement. 7) PMI is not required to perform the services set forth in this Agreement at City-owned property. Section 10. CIVIL CODE SECTION 1542 WAIVER With the exception of the obligations expressly created pursuant to this Agreement, PMI expressly waives any and all rights and benefits conferred upon it by the provisions of section 1542 of the California Civil Code which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This waiver shall be effective as a bar to any and all actions, fees, damages, losses, claims, liabilities and demands of whatsoever character, nature and kind, that are known or unknown, or suspected or unsuspected, including, without limitation, claims of entitlements under the California Public Employees' Retirement System (Ca1PERS) that are only afforded to employees and not independent contractors. PMI further represents and warrants that it understands this waiver and that if it does not understand this waiver, it shall seek the advice of a qualified attorney before executing this Agreement. Section 11. FAMILIARITY WITH WORK By executing this Agreement, PMI warrants that (1) it has thoroughly investigated and considered any work to be performed, (2) it has investigated the issues, regarding any services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Section 12. EQUAL OPPORTUNITY EMPLOYMENT PMI represents that it is an equal opportunity employer and shall not discriminate against any subcontractor, employee, or applicant ("person") for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, mental condition, marital status, sex, age, or sexual orientation. Unless otherwise permitted under the law, PMI shall not refuse to hire or employ any such person or refuse to select any such person for a training program leading to employment, or bar or discharge any such person from employment or from a training program leading to employment, or otherwise discriminate against any such person in compensation or in terms, conditions, or privileges or employment. Section 13. CONFLICTS OF INTEREST 6 PMI covenants that it does not have any interest, nor shall it acquire an interest, directly or indirectly, which would conflict in any manner with the performance of PMI's obligations under this Agreement. In the event the City officially determines that PMI must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, PMI shall file the subject Form 700 with the City pursuant to the written instructions provided by the City. Section 14. COMPLIANCE WITH LAWS; LICENSING AND PERMIT REQUIREMENTS a. PMI shall comply with all local, state and federal laws and regulations applicable to the obligations required hereunder, including any rule, regulation or bylaw governing the conduct or performance of PMI and/or its employees, officers, or board members. b. PMI represents that it has obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for satisfaction of its obligations described in this Agreement. Section 15. INSURANCE REQUIREMENTS PMI shall procure and maintain at its own expense, during the term of this Agreement, comprehensive general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the wrongful or negligent acts by PMI or its officers, employees, servants, volunteers and agents and independent contractors. PMI shall further procure and maintain at its own expense, during the term of this Agreement, commercial vehicle liability insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, covering any vehicle utilized by PMI or its officers, employees, pilots, servants, volunteers and agents and independent contractors in satisfaction of its obligations required by this Agreement. Section 16. WORKERS' COMPENSATION INSURANCE PMI shall procure and maintain at its own expense, during the term of this Agreement, workers' compensation insurance, providing coverage as required by the California State Workers' Compensation Law. If any class of employees employed by PMI pursuant to this Agreement is not protected by the California State Workers' Compensation Law, PMI shall provide adequate insurance for the protection of such employees to the satisfaction of the City. This provision shall not apply if PMI has no employees performing work under this Agreement. If PMI has no employees for the purposes of this Agreement, PMI shall sign the Certificate of Exemption from Worker's Compensation Insurance, attached hereto as Exhibit"C." 7 Section 17. ADDITIONAL NAMED INSURED Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation coverage, shall bear an endorsement whereby it is provided that, the City and its officers, employees, servants, volunteers and agents and independent contractors, including without limitation, the City's City Manager and its City Attorney, are named as additional insured. Section 18. WAIVER OF SUBROGATION RIGHTS PMI shall require the carriers of all required insurance policies to waive all rights of subrogation against the City and its officers, volunteers, employees, contractors and subcontractors. Section 19. PROOF OF INSURANCE COVERAGE; CERTIFICATES PMI shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the policies of insurance required by this Agreement and furnish to the City certificates of said insurance on or before the commencement of the term of this Agreement. PMI shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. Each policy required herein must be endorsed to provide that the policy shall not be cancelled or reduced in coverage unless the insurer has provided the City with thirty (30) days prior written notice of cancellation or reduction in coverage. All insurance policies required to be provided by PMI or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to the City, and its officers, employees, servants, volunteers, agents and independent contractors. Section 20. PMI'S REPRESENTATIONS AND WARRANTIES PMI hereby makes the following representations, warranties and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date: a. PMI has the full right,power and authority to enter into this Agreement and to sell Central Mix and rent the Equipment to the City, and to take all actions required of PMI by the 8 terms of this Agreement. b. All the documents executed by PMI pursuant to this Agreement will be duly authorized, executed and delivered by PMI and will be legal, valid and binding obligations of PMI enforceable against PMI in accordance with their respective terms, and will not violate any provisions of any agreement to which PMI is a party or to which it is subject. c. PMI has manufactured the Central Mix and has centrally mixed the Central Mix in accordance with Sections 203-5.5 and 203-5.5.3, respectively, of the Greenbook. d. PMI has good and marketable title to the Central Mix, which is to be sold and transferred to the City free and clear of all liens, security agreements, encumbrances, claims,demands, and charges of every kind and nature whatsoever. e. The Central Mix and Equipment are free from all defects and are of good quality and fit for the purposes and uses intended herein. f. PMI possesses the ability to deliver up to 20,000 gallons of Central Mix daily to Cathedral City, California, during the term of this Agreement. g. The Equipment has been maintained in substantial accordance with the specifications of the Equipment manufacturers, or has otherwise been maintained in a manner to enable Contractor to complete the Project as required under City Project No. 8901. h. PMI has inspected the Equipment and the Equipment is or will be in good and operable condition as of October 19, 2015, sufficient to enable Contractor to complete the Project on a timely basis in accordance with the requirements set forth under City Project No. 8901. Section 21. PRODUCT AND DELIVERY WARRANTIES a. PMI hereby warrants that the Central Mix product (sometimes hereinafter, "Product") will not Fail (as defined hereinafter) for five (5) years from the date of application (hereinafter, "Useful Life"), provided all persons involved in the installation of the Product substantially follow the guidelines, instructions , recommendations and best practices published and/or provided by PMI. The City hereby grants PMI and its representatives, in consultation with the City's inspector, the right to inspect, observe, monitor, provide instructions and recommend corrective actions to the City and any person installing the Product on all applications of the Product, including, without limitation, compliance with the guidelines and best practices for the application of the Product. The granting of this right to PMI and its representatives does not impose any additional duty on PMI or its representatives in addition to those duties outlined in this Agreement. b. Should the Product Fail, PMI shall, at its election, and within thirty (30) days after determination of Failure, either repair or pay for the material cost of the Product to repair those areas of the Product covered by this warranty that Fail during its Useful Life, as well as for 9 labor and other incidental costs (hereinafter, "Labor and Incidental Costs"), including, but not limited to, any affected striping, markings, and reflective pavement markers; provided, however, that such Failure shall occur within one (1) year from the date of Product application. For any Failure that occurs thereafter but during the Useful Life, PMI shall only be responsible for the repair or payment for the material cost of the Product, which shall also occur within thirty (30) days after determination of Product Failure. For purposes of this Agreement, whether the Product has Failed must be evaluated using the Slurry Seal Survey Procedures set forth in Exhibit "D" ("SSSP"), attached hereto and incorporated herein by this reference. The term "Fail," "Fails," "Failure" or "Failed" shall mean that, prior to the expiration of the Useful Life, more than ten percent (10%) of the native asphalt for any street segment (as defined in Exhibit "D") becomes uncovered (i.e., no longer covered by the Product), and such uncovering does not arise out of conditions outside of PMI's control, including, but not limited to, subgrade conditions, improper subbase and/or compaction, cracks, earthquakes, over watering, frequent sprinkler overspray, standing or ponding water, heavy truck or equipment traffic, corrosive or acid materials that may leak or spill on the Product, or a Force Majeure event, as defined below. c. Provided PMI and the City mutually agree, either Steve Marvin, of LaBelle Marvin, or Steve Escobar, of Asphalt Pavement and Recycling Technology, shall make the exclusive determination of whether the Product "Failed" during its Useful Life and, if so, identify the areas and the square footage of Failure that "Failed." If PMI elects not to perform the repair itself, then PMI shall pay one hundred percent (100%) of the Product material cost for the percentage of "Failed" square footage, and for any related Labor and Incidental Costs to the extent there may be any Labor and Incidental Costs during the first year of the Product's Useful Life. If Steve Marvin or Steve Escobar are unavailable to make the determination of whether the Product "Failed," an independent engineer approved by both the City and PMI with qualifications and experience as extensive as Steve Marvin's or Steve Escobar's shall be used. This warranty only applies to the Project that is the subject of this Agreement and no other location. If the evaluator concludes the Product Failed, PMI will bear the cost of the evaluation. If the evaluator concludes the Product did not Fail, the City will bear the cost of the evaluation. d. This warranty shall be ineffective unless the City provides PMI written notice of any problems, defects or perceived Failures of the Product within thirty (30) days of the City's discovery of the problem, defect or perceived Failure. PMI shall be given the opportunity to inspect, investigate, test, repair and remediate any alleged problems, defects or failures in connection with the Product prior to any repair by the City, and, repair without notice shall void and waive this warranty. Inspection, investigation, testing, repair and remediation by PMI shall not operate as an admission of liability by PMI. e. Subject to Sections 21b and 21f hereof, regardless of whether any remedy set forth herein fails of its essential purpose, in no event shall PMI be liable to City for any special, consequential, incidental, exemplary, punitive, indirect or similar damages, including loss of profits, loss of use, or personal injury, in connection with any Failed Product, even if PMI has been advised of the possibility of such damages. 10 f. Notwithstanding anything else to the contrary herein, in the event PMI should fail to deliver the entirety of any per diem amount of Central Mix as required by the City in accordance with Section 2 of this Agreement, or, in the event of a delay due to any portion of the Central Mix being deemed by the City to be unusable for the timely completion of the Project through sample testing or otherwise, PMI shall be responsible and shall immediately pay for any and all direct or indirect damages of whatever character, nature or kind, in connection therewith, in accordance with the method of calculation of damages from delays set forth in Section 25 of the General Provisions, which is expressly incorporated herein by this reference with the same force and effect as though set forth at length herein, and which provisions are part of the City's contract with Contractor for the Project; provided, however, that PMI shall not be held responsible for delays if such delays are as a result of any Act of God (hereinafter, "Force Majeure"), which includes fire, flood, earthquake, storm, hurricane or other natural disaster, war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service. In the event of any delay, PMI shall immediately notify the City in writing of the delay and the estimated extent of the delay, and the cause of the delay. The term of this Agreement, including the Rental Term, may be extended by the City in the City's sole discretion in the event of a Force Majeure delay but in no event shall PMI be considered in breach of this Agreement or any warranty as a result of any such Force Majeure delay. g. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED FOR HEREIN, PMI HEREBY DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE. Section 22. CITY'S REPRESENTATIONS AND WARRANTIES The City hereby makes the following representations, warranties and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date: a. The City, and the person executing this Agreement on behalf of City, has the full right, power and authority to enter into this Agreement,to receive and accept the Central Mix and Equipment from PMI, and to take all actions required of it by the terms of this Agreement. b. All the documents executed by the City pursuant to this Agreement will be duly authorized, executed and delivered by the City and will be legal, valid and binding obligations of City enforceable against it in accordance with their respective terms, and will not violate any provisions of any agreement to which the City is a party or to which it is subject. Section 23. RISKOFLOSS The City shall not be responsible in any way for any loss to any Central Mix during shipment to the City's designated location, nor for any damage or loss to the Equipment 11 during delivery to or pick up from Cathedral City. All such risk of loss shall be borne by PMI. Section 24. DAMAGE TO EQUIPMENT If for any reason the Equipment becomes damaged or inoperable during the Rental Term for the,purposes contemplated by the Parties hereunder, PMI shall immediately repair or replace the Equipment, as may be necessary, at PMI's sole cost, it being understood that the City's inability to use the Equipment during any day of the Rental Term, or any portion thereof, will likely result in damages to the City. Any damage to the Equipment arising from the negligence or willful misconduct of the City or its officers, agents, employees or independent contractors, shall cause PMI to immediately replace or repair the Equipment, as necessary, with the cost thereof to be borne by the City. Notwithstanding anything else to the contrary herein, in the event there is a delay to the Project arising from or in any way in connection with PMI's failure to maintain the Equipment in accordance with the specifications, of the Equipment manufacturers, or other failure to properly maintain the Equipment, and the Contractor is delayed or unable to perform its contractual obligations owed to the City for the Project due to such failure, PMI shall be responsible and shall immediately pay for any and all such damages. Section 25. TERMINATION OR SUSPENSION a. ' This Agreement may be terminated or suspended with or without cause by the City at any time provided that the City provides PMI at least five (5) business days written notice of such termination or suspension. b. In the event of a termination or suspension of this Agreement under this section, PMI shall provide all documents, reports, data or other work product developed in performance of this Agreement, to the City, within ten (10) calendar days of such termination or suspension and without additional charge to the City. Section 26. TIME OF THE ESSENCE Time is of the essence in the performance of this Agreement. Section 27. INDEMNIFICATION a. PMI shall defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers (hereinafter, "Indemnified Parties") from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith), arising out of the performance of this Agreement and PMI's obligations and statements made hereunder, including, but not limited to, PMI's breach of any of its representations or warranties made under Section 20 of this Agreement; provided, however, that PMI shall not indemnify any of the Indemnified Parties for any such claim arising out of the sole negligence or willful misconduct of any of the Indemnified Parties. 12 b. The City does not, and shall not waive any rights that it may have against PMI under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability,Joss, cost or expense described herein. c. Notwithstanding the provisions of subsections a. and b. of this Section, PMI shall not be responsible for damages or be in default or deemed to be in default by reason of delay caused by strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information, or by reason of delay or faulty performance by the City, construction contractors, or governmental agencies, or by reason of any other delays beyond PMI's control, or for which PMI is without fault. Section 28. BOOKS AND RECORDS a. PMI shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges under this Agreement, including for services, or expenditures and disbursements charged to the City for a minimum period of three years, or for any longer period required by law, from the date of final payment to PMI pursuant to this Agreement. b. PMI shall maintain all documents and records which demonstrate performance under this Agreement for a minimum of three years, or for any longer period required by law,from the date of tennination or completion of this Agreement. c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City's City Manager or Director of Public Works, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at the City's address indicated for receipt of notice in this Agreement when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at PMI's address indicated for receipt of notices. d. Where the City has reason to believe that' such records or documents may be lost or discarded due to dissolution, disbandment or termination of PMI's business, the City may, by written request of any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained at the City's address indicated for receipt of notice in this Agreement. Access to such records and documents shall be granted to any party authorized by PMI, PMI's representative or PMI's successor-in-interest. Section 29. OWNERSHIP OF DOCUMENTS All plans, studies, documents and other writings prepare by and for PMI, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to 13 PMI for such:work, and the City shall have the sole right to use such materials in its discretion without further compensation to PMI or to any other party. PMI shall, at its expense, provide such reports, plans, studies, documents and other writings to City upon written request. Section 30. CONFIDENTIALITY a. All ideas, memoranda, specifications, plans, procedures, drawings, photographs, descriptions, computer program data, input record data, written information, and other documents and data other created by or provided by PMI in connection with the performance of this Agreement shall be held confidential by PMI. Such materials shall not, without prior written consent of the City, be used by PMI for any purposes other than performance under this Agreement, nor shall such materials be disclosed to any person or entity not connected with this Agreement. Nothing furnished to PMI which is otherwise know to PMI or is generally known, or has become known, to the related industry shall be deemed confidential. b. PMI shall not use the City's insignia or photographs relating to the subject matter of this Agreement, or any publicity pertaining to the same, in any magazine, trade paper, newspaper, television or radio production or similar medium without the prior written consent of the City. Section 31. MODIFICATIONS AND AMENDMENTS This Agreement may be modified or amended only by a written instrument signed by both parties. Section 32. ENTIRE AGREEMENT a. This Agreement supersedes any and all other agreements, either oral or written, between the City and PMI with respect to the subject matter of this Agreement. b. This Agreement contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those covenants and agreements embodied in this Agreement. c. ; No agreement, statement, or promise not contained in this Agreement shall be valid or binding. Section 33. AMBIGUITIES This Agreement is in all respects intended by each party hereto to be deemed and construed to have been jointly prepared by the parties and the parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement. 14 Section 34. NOTICES a. Any notice to be provided pursuant to this Agreement shall be in writing, and all suchi notices shall be delivered by personal service or by deposit in the United States mail, !certified or registered, return receipt requested, with postage prepaid, and addressed to the parties as follows: 15 If to City: Cathedral City Attn: John A. Corella, P.E. City Engineer 68-700 Avenida Lalo Guerrero Cathedral City,California 92234 Telephone:(760)770-0390 Facsimile: (760) 328-8622 Email: If to PMI: Frank B. Hoffman, C.F.O. Petrochem Manufacturing,Inc. 6168 Innovation Way Carlsbad, CA 92009 Telephone:(760) 603-0961 Facsimile: (760) 603-0962 Email:frank@pmitechnology.com b. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail. Section 35. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES No officer or employee of the City shall be personally liable to PMI, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to PMI or to its successor, or for any breach of any obligation of the terms of this Agreement. Section 36. REVIEW BYATTORNEYS Each party hereto has had its attorneys review this Agreement and all related documents. Each party hereto has consulted with its attorneys and has negotiated the terms of this Agreement based on such consultation. Section 37. WAIVER a. No waiver shall be binding, unless executed in writing by the party making the waiver. b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. 17 c. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement. Section 38. ASSIGNMENT AND SUBCONTRACTING a. The experience, knowledge, capability and reputation of PMI, its principals and employees were a substantial inducement for the City to enter into this Agreement. Assignments of any or all rights, duties or obligations of the PMI under this Agreement will be permitted only with the written consent of the City. b. PMI shall not subcontract any portion of the work to be performed under this Agreement without the written consent of the City. If the City consents to such subcontract, PMI shall be fully responsible to the City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between the City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as required by law. Section 39. CAPTIONS AND HEADINGS The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading. Section 40. SUCCESSORS,HEIRS AND ASSIGNS Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the parties. Section 41. SEVERABILITY If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein. Section 42. GOVERNING LAW The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law. 18 Section 43. DEFAULT AND BREACH a. 'Failure or delay by any party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within one (1) business day' after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. b. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default;provided,however,the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein. c. 'Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. d. In the event that a default of any party to this Agreement may remain uncured for more than one (1) business day following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings. Notwithstanding anything else to the contrary in this Agreement, if the City discovers or learns that any one of PMI's representations and warranties given under Section 20 of this Agreement, is not true, either in whole or in part, then PMI shall be deemed in breach of this Agreement. Section 44. CUMULATIVE REMEDIES Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default bythe;other party. Section 45. VENUE All proceedings involving disputes over the terms, prov 1 s 1 ons, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County,California. 19 Section 46. LITIGATION EXPENSES AND ATTORNEY'S FEES In the, event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof Section 47. NO THIRD PARTY BENEFICIARIES The parties do not intend the benefits of this Agreement to inure to any third party, nor shall any'provision of this Agreement be so construed. Section 48. LABOR LAWS a. All work or services performed within the State of California pursuant to this Agreement by PMI, PMI's employees and independent contractors, or PMI's subcontractors and its subcontractors' employees and independent contractors shall be performed by individuals lawfully permitted to perform such work or services in the State of California and/or the United States of America pursuant to all applicable State and/or Federal labor laws, rules and regulations including, but not limited to, any State or Federal law, rule or regulation prohibiting the employment of undocumented workers or any other person not lawfully permitted to perform said work or services in the State of California or the United States of America. b. Documentation must be promptly submitted to the City at any time, at the request of the City, for the purpose of determining whether or not the work or services provided pursuant to this contract are being provided in compliance with this section. c. At any time during the term of this Agreement, the City reserves the right to make an independent investigation into the background of PMI's personnel who provide services required herein, including, but not limited to, their references, character, address history, past employment, education, social security number validation, and criminal or police records, for the purpose of confirming that such personnel are lawfully employed, qualified to provide the subject service or pose a risk to the safety of persons or property in and around the vicinity of where the services will be rendered. If the City makes a reasonable determination that any of PMI's prospective or then current personnel is deemed objectionable, then the City may notify PMI of the same. PMI shall not use that personnel to perform services required herein, and if necessary, shall replace him or her with other suitable personnel. Section 49. REPRESENTATIONS OF PARTIES AND PERSONS 20 EXECUTING AGREEMENT a. Each of the parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the parties hereto. b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent. Section 50. COUNTERPARTS This Agreement may be executed in any number of counterparts each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. Section 51. FURTHER ASSURANCES The Parties agree to cooperate with each other and to execute, deliver and record such other agreements and documents and to take such other actions as are reasonably necessary or helpful to more effectively consummate the transactions contemplated under this Agreement and to carry out its purpose and intent. (THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] 21 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CATHEDRAL CITY PETROCHEM MANUFACTURING, INC. Stan He y, Mayor /---;Frank B. Hoffman,/Cheif Financial Officer ATTEST: , �_ er_ _ 0•.<< 1/ • k APPROVED AS TO FORM: City Attorney 22 EXHIBIT "A" CITY OF LOS ANGELES LETTER TO PMI DATED MARCH 31,2015 SEE ATTACHED CITY OF Los ANGELES CALIFORNIA TONY M. ROYSTER DEPARTMENT OF GENERAL MANAGER GENERAL SERVICES AND crry PURCHASING AGENT ROOM 701 n"..?!111111 P CITY HALL SOUTH 1 1 111 EAST FIRST STREET LOS ANGELES,CA 90012 (213)928-9555 • ` FAX NO.(213)928-9515 APED ERIC GARCEITI MAYOR March 31, 2015 Petrochem Manufacturing, Inc. 5205 Avenida Encinas, Suite K Carlsbad, CA 92008 SUBJECT: CITY OF LOS ANGELES SUPPLY CONTRACT 59081 —AMENDMENT 08 SLURRY, PREMIX R.E.A.S. The subject contract is hereby extended until 12/31/2015. Line# Description Old Price New Price 1 Premix, Rubberized Emulsion Aggregated Slurry, Type I $ 2.60 $ 2.55 6 Rental, Service/Haul Truck, Per Day Basis $475.00 $200.00 8 Rental, Application Trucks-4 hr min $252.00 $285.00 9 Job:Tankers, for Delivery of REAS in Trailer Mounted 4,000 gallon tank. For use within the City limits. $150.00 $500.00 The following items are being added, effective 04/01//2015: Line# Description Price 24 Rental, Delivery Tanker-Bare, Each Load $175.00/load 25 Labor, Posting & Notifying of Affected Traffic Disruptions $ 95.00/hour 26 Hangtag/Doorknob Notice, as related to Traffic Disruptions (line 25) $ .05/each 27 Traffic Control, (furnish/place/maintain/traffic signage, excluding electronic) of affected areas $1,000/Day 28 Sweeper, Mobile Units (4 hour min), to be used only should City Sweepers not show up. $ 185/Day All other contract terms and conditions remain unchanged and in force. Questions regarding this contract modification should be addressed to Martha Medina, Procurement Analyst, at 213-928- 9536 or via e-mail Martha.Medina @lacity.org. Tony M. Royster Approved as to Form General Manager and.- L.- Michael, 1.-Fea r City Pur► a-ing A• -nt BY: il't4411.4_4i_OP By: / IF ■ upply -rvices '-nager Anthony Paul D Deputy City Attorney G AN EQUAL EMPLOYMENT OPPORTUNITY-AFFIRMATIVE ACTION EMPLOYER EXHIBIT "B" SUMMARY OF ESTIMATED CHARGES Purchase of the Central Mix 80,000 gallons x $2.15/gallon=$172,000 +$15,480 sales taxes (at 9.00%) = $187,480 Delivery Charges 80,000 gallons x$0.26/gallon= $ 20,800 Rental of 2 Storage Tanks $2,000/day at 5 days= $ 10,000 Rental of Pump $500/day at 5 days = $ 2,500 Rental of Pumper $475/day at 5 days = $ 2,375 Total Estimated Charges (including sales taxes) $223,155 EXHIBIT "C" CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I certify that, in the performance of the work to be performed by Petrochem Manufacturing, Inc,for Cathedral City, I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provisions of the California Labor Code, I shall forthwith complywiththos e provisions. / "1w a Co Date:June 22,2015 Name&Signatur- EXHIBIT "D" SLURRY SEAL SURVEY PROCEDURES TO DETERMINE THE PERCENTAGE OF FAILED SLURRY SEAL ON STREET SEGMENTS UP TO FIVE(5)YEARS IN AGE When conducting the survey the following information shall be collected for each street segment: INFORMATION 1) Name,;limits of street surveyed 2) Date of survey 3) Time of day surveyed 4) Weather conditions 5) Remarks 6) Percent of slurry seal remaining DEFINITION OF TERMS Street Segment- the asphalt concrete portion of a street measured from the centerline of the adjacent cross street running longitudinally down the street to the centerline of the next adjacent cross street. Cul-de-sac or dead end street segments shall begin at a line running transversely to the center line of the dead end street from the outer edge of the Portland Cement Concrete (PCC) gutter on one side of the street to the outer edge of the PCC gutter on the opposite side of the street and running longitudinally down the street until the end of the asphalt concrete portion of the street. In the case of no PCC gutters the segment shall begin at a line running transversely to the centerline of the dead end street from the face of the curb on one side to the face of the curb on the opposite side of the street. TEST METHODS The assessment of the area of slurry seal remaining in a specified street segment shall be made initially'through a visual windshield inspection by driving a vehicle up one side of the street and down the other side. The segment shall be then visually inspected on foot up one side of the street and down the other side. The total length and width of each street segment shall; be determined using a rolo tape. All changes in segment width, utility cuts, street improvements, and repairs shall be measured with a rolo tape and the area subtracted from the total area of the segment. The measurement of areas within the segment that appear to not have slurry seal remaining or a complex pattern of areas with and without slurry seal remaining shall be made with a rolo tape using two methodologies. Method A for areas with simple patterns and Method B for complex patterns and shapes. TOOLS 1 1) Notebook and pencil 2) Rolo Tape Measuring Wheel (RTMW)for lineal feet 3) 1'Xl'Cardboard Square 4) Can of white marking paint 5) Pocketknife 6) 12-inch Ruler 7) Black felt tip pen Method A Areas in all street segments that appear to not have slurry seal remaining in simple relatively easily defined shapes shall have the length and width of the shape measured with a rolo tape and the square footage subtracted from the total street segment square footage. Method 8 Areas in all street segments that appear to not have slurry seal remaining in complex patterns and relatively difficult to define shapes shall have the length and width of the shape measured with a rolo tape. Within the defined shape a representative one foot square box shall be created using a piece of cardboard, one (1) foot by one (1) foot, placed directly on the street and the outline of the box transferred to the surface of the street using a can of white marking paint. Within the box all areas without slurry seal remaining shall be measured with a 12-inch ruler. These measurements shall be added together and a percentage of slurry seal not remaining in the box shall be calculated and that percentage applied to the square footage of the entire shape. The shapes total square footage of slurry seal not remaining on the street shall be subtracted from the total street segment square footage. The majority of complex patterns of areas with and without slurry seal shall include the tops of all aggregates; in the asphalt concrete without slurry seal and the areas between the larger aggregate having slurry seal. To determine the percentage of area within the box that did not have slurry 'seal, every aggregate top without slurry seal within the square shall be measured, marking each counted aggregate top with a black felt tip marking pen, summing the total square inch area without slurry seal and dividing that figure by 144 square inches to determine the 1 total percentage of area without slurry seal within one (1) square foot. The total percentage of area without slurry seal within one (1) square foot shall be multiplied by the total area of complex shapes and divided by 100 to determine the number of square feet without slurry seal within the shape. The total square feet without slurry seal for all shapes shall be deducted from the total square feet of each street segment to determine the percentage of slurry seal remaining within each street segment.