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HomeMy WebLinkAboutAGMT - Horizon (Smart Controllers Rebate)PROFESSIONAL SERVICES AGREEMENT Between City of Seal Beach 211 8th Street Seal Beach, CA 90740 - Horizon 2710 South Main Street Suite B, Santa Ana CA 92707 (760) 420 -1665 This Professional Services Agreement ( "the Agreement') is made as of January 28, 2019 (the "Effective Date "), by and between Horizon ( "Consultant'), and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). RECITALS A. City desires certain professional services, including the acquisition, installation, programming, implementation and training of City staff to operate, 31 Weathermatic SL4800 smart irrigation controllers, SLW5 Weather Stations and SmartLink air cards at locations designated by the City, as described in Exhibit A (the "Services "). B. Consultant represents that it is qualified and able to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide the Servicesin a timely manner. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law including, without limitation, the applicable provisions of the California Labor Code relating to the payment of prevailing wages for public works projects. 1.4. Consultant will not be compensated for any work performed not specified in the Scope of Services unless the City authorizes such work in advance and in writing. The City Manager may authorize extra work to address unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization. 2.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 1 year unless previously terminated as provided by this Agreement. 3.0 Consultant's Compensation 2of10 S7296- 0001 \1236808vt.doc City will issue a Purchase Order to the Consultant in the amount of $81,840 plus applicable sales tax, if any, for services identified in Exhibit A. Consultant shall timely file any necessary application for rebates, with accompanying documentation, for the SoCal Water$mart rebate program for the benefit of City. The City will not be responsible to pay any fee to the Consultant unless and until the City directly receives a rebate from the SoCal Water$mart rebate program in the amount of $81,840.00. If the City does not receive a rebate in the full amount of $81,840.00, the City shall not be liable to compensate Consultant. Upon City's acceptance of Consultant's completion of the Services, and after City receives the rebate of $81,840, City shall make full payment to Consultant and Consultant shall issue a credit to City of the sales tax amount due. In no event shall City be liable to Consultant for any other cost for time, services and materials for the Services. Consultant shall not record any lien on any City property in connection with the Services. 4.0 Method of Payment 4.1. Consultant shall submit to City a final invoice for all services rendered pursuant to this Agreement. Such invoice shall be submitted within 15 days of the completion of the Services. City will pay Consultant within 30 days of receiving a full rebate payment from the SoCal Water$mart rebate program. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 4.2. Upon 24 -hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the termination of this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 3of10 S7296- 0001 \1236808v1.doc 6.0 Party Representatives 6.1. The City Manager is the City's representative for purposes of this Agreement. 6.2. Brian Bailey is the Consultant's primary representative for purposes of this Agreement. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: To City: City of Seal Beach 211 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Horizon 2710 South Main Street Suite B Santa Ana, California 92707 Attn: Brian Bailey 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 8.0 Independent Contractor 8.1. Consultant is an independent contractor and not an employee of the City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 8.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all 4of10 S7296- 0001 \1236808v1.doc liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 9.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 10.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 11.0 Insurance and Warranties 11.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this 5of10 S7296 -0001 \1236808v1.doc Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim /aggregate. 11.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self- insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 11.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 11.5. Any deductibles or self- insured retentions shall be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 11.6. Consultant shall obtain, and shall transfer to the City, all manufacturers' warranties on any equipment purchased pursuant to this Agreement. 6of10 S7296 -0001 \1236808v 1.doc 12.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnitees ") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of the City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and /or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. 13.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non - discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 14.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 15.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or 7of10 57296- 0001 \1236808v1.doc agreements. This Agreement may only be modified by a writing signed by both parties. 16.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 17.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 18.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 19.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 20.0 Prohibited Interests; Conflict of Interest 20.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code § §1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 20.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the 8of10 S7296- 0001 \1236808v1.doc right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 20.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, non - contractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 21.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 22.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 23.0 Corporate Authority The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, the Consultant is formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. 9of10 S7296 -0001 \1236808v 1.doc CITY OF SEAL BEACH 0 Attest: 0 Jill R. Ingram, City Manager Robin L. Roberts, City Clerk Approved as to Form: In Craig A. Steele, City Attorney S7296- 0001 \1236808v1.doc CONSULTANT By:�a Name: Brian Bailey Its: By: 0,,c4JJ Name: Its: CITY OF SEAL BEACH By: � ' nk7 Ingram, Ciqma(na&r Attest Apprc S7296- 0001 \1236808v1.doc CONSULTANT By:��� �/k.11i1 Name:Brian Bailey Its: 2ur C 6'k�. • u By: Name: , cw. R at Yy J DI Its: V a l v� c S vLAop . c44 Of54 City Hall 211 8� Street �'. Seal Beach, CA 90740 -6379 < ". .(562) 431 -2527 exi. 1314 - - C �. • rL�b. Type. One Day BL P ' 4 ,, �EA Custorrier # 042748 tl \1T\ Dates 02 /1/2019 us tessLicnse License Issued To: FlorizonDistributors�� Owner's/Agent's Name' e Horizon Distributors T1 f Issued By M. Margiiiez R d 4p Seal Beach Finance Department" ' b - .' V� •�- ?, Jp � f N f n +a A � o® CERTIFICATE OF LIABILITY INSURANCE DATE(MWDDYYYYt 5/302018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Arthur J. Gallagher Risk Management Services, Inc. 111 Veterans Boulevard, Suite 1130 Metairie LA 70005 CONTACT NAME Adam Fox : PHONE FAX Ac No J: 504 - 888 -1100 AC No): 504- 888 -1299 -MAIL AE DDRass: Adam_Fox1 aj .com INSURERS AFFORDING COVERAGE NAIC it Y INSURERA: Sentry Insurance a Mutual Company 24968 61112018 INSURED POOLCOR -03 Horizon Distributors, Inc. 5214 S 30th Street INSURER B: Navigators Specialty. Insurance Company 36056 INSURER C: INSURER D: Phoenix, AZ 85040 INSURER E INSURER F: $1 moo00 COVERAGES CERTIFICATE NUMBER: 1223228246 REVISION NUMBER: THIS 15 TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN5R LTR rypE OF INSURANCE AOOL SUBR POLICY NUMBER POLICY EFF MMIDOIYYYY POLICY EXP MMIDD LIMITS B X COMMERCIAL GENERAL LIABILITY Y Y CH18NP30BGWYRIC 61112018 3/12019 EACH OCCURRENCE STwoom CLAIMS -MADE X OCCUR DAMAGE TO RENTED PREMISES Ea ocwrrome $1 moo00 MED EXP(My one person) $25,000 PERSONAL B ADV INJURY $i'm000g AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $$000000 GEN'L X POLICY E] PECT El LOC PRODUCTS- COMP/OP AGO $2,000000 $ OTHER. A A AUTOMOBILE LIABILITY Y Y 901481503 901481504 6I1I2018 611 /2018 6112019 3/12019 COMBINEDSINGLE LIMIT Ea a¢itlent $0000000 BODILY INJURY(Perperson) $ X ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per acdtleny $ PROPERTY _(Per acc itlen DAMAGE $ HIRED NON-OWNED AUTOS ONLY AUTOS ONLY $ UMBRELLAUA6 OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIM MADE DED I I RETENTIONS S A A WORNERSCOMPENSATION AND EMPLOYERS' LIABILITY YIN Y 901481501 901481502 6112018 6I1I2018 &12019 3/12019 X STATUTE 24T ANYPROPRIETORMARTNERIEXECUTIVE E. L. EACH ACCIDENT S Two a0 OFFICERIMEMBER EXCLUDED? ❑ NIA E. L. DISEASE - EA EMPLOYEE $1000,000 (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $1.000.000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate Holder is listed as additional insured on the General Liability (NAV NP3 (07/16)) and Auto (CA (10 02 01 87). Waiver of Subrogation is in favor of the certificate holder on the Workers Compensation (WC 00 03 13 (04 -84)), General Liability (NENV 10061 (07/16)) and Auto (CA 80 11 07 07) as required by Written Contract. HORIZON all CA Locations Waiver of subrogation is granted as it relates to general liability, auto liability, and workerSETM compensation in accordance with the terms and conditions of the policies. The auto deductible is $250,000 per occurrence and the GL deductible is $100,000 per occurrence except $250,000 for pollution. CERTIFICATE HOLDER CANCELLATION ©1988.2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN County of Orange ACCORDANCE WITH THE POLICY PROVISIONS. OC Public Works /Procurement Division AUTHORVED REPRESENTATIVE 2301 North Glassell Street Orange CA 92865 � ©1988.2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD