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HomeMy WebLinkAboutAGMT - Enviromental Compliance Inspection Services (On-Call FOG Inspections) Pa° 1 25q AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement ") is made and entered into as of July 11, 2005 by and between the CITY OF SEAL BEACH, a municipal corporation ( "City") and Environmental Compliance Inspection Services ( "ECIS "), a California Corporation ( "Contractor "). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties." RECITALS WHEREAS, Contractor represents that it has the expertise and experience to provide such services; NOW THEREFORE, and for good consideration, the City and Contractor agree as follows: 1. Project. City desires to engage Contractor to render professional services for the project ( "Project ") as set forth in this Agreement. 2. Description of Services to be Provided. Contractor shall furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional project services necessary for the Project ( "Services "). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3. Term. Subject to the termination provisions set forth herein below, the term of this Agreement shall be three (3) years from the date of execution. The parties may extend the term by written mutual agreement on a year -to -year basis not to exceed an additional two (2) years. 4. Party Representatives. The City designates Mr. Mark Vukojevic, Director of Public Works /City Engineer, to act on City's behalf. City's Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City's Representative or his designee. The Contractor designates Jon Kinley to act on Contractor's behalf. Contractor's Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor's Representative shall supervise and direct the Services, using his best skill and attention, and shall be S7296.0001.822000 responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 5. Attachments. This Agreement incorporates by reference the following Attachments to this Agreement: Exhibit A: Scope of Services Exhibit B: Fee Schedule 6. Integration. This Agreement represents the entire understanding of City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with regard to those matters covered by this Agreement. This Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may only be amended by the mutual consent of the parties by an instrument in writing. 7. Standard of Performance. Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 8. Standard Specifications. Contractor agrees that all services shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry, and that all goods, materials, equipment or personal property included within the services herein shall be of good quality, fit for the purpose intended. 9. Performance to Satisfaction of City. Contractor agrees, to perform all Services to the satisfaction of City within the time specified. if Contractor's Services are not satisfactory in the opinion of City's designated representative, City has the right to take appropriate action, including but not limited to any or all of the following: (i) meeting with Contractor to review the quality of the Services and resolve matters of concern; (ii) requiring Contractor to repeat or correct the Services at no additional fee until it is satisfactory; (iii) suspending the delivery of new or additional Services to Contractor for an indefinite time; (iv) withholding payment; and (v) terminating this Agreement as hereinafter set forth. City's options set forth herein are non - exclusive, and are in addition to any remedy available at law to City. 10. Prohibition Against Subcontracting or Assignment. Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither the Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. In the event of any unapproved transfer, including in any bankruptcy proceeding, City may void the Agreement at July 2005 ECIS FOG Inspections.DOC 2 City's option in its sole and absolute discretion. No approved transfer shall release any surety of Contractor of any liability hereunder without the express consent of City. 11. Fees and Payments. 11.1 Compensation. City shall pay to Contractor compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit `B" attached hereto and incorporated herein by reference. Prior to starting any work, the contractor shall submit a detailed task order scope, fee proposal, schedule, and overall project estimate. No work shall begin until written approval by the Public Works Department. For the second and subsequent contract years, the Contractor may petition the City for an increase in the hourly rates set forth in Attachment 1 on the basis of: (a) unusual changes in his cost of doing business, due to revised laws or regulations, over which the Contractor has no control; or (b) a yearly increase in the C.P.I. in excess of three percent over the preceding year. In order to justify an increase, the Contractor shall submit financial and accounting data to the City which clearly substantiates the requested increase. After consideration of such financial and accounting data as submitted by the Contractor and any other relevant information, the City Council shall disapprove, approve, or approve with modification the requested increase. The decision of the City Council shall be final and conclusive. The Contractor agrees to abide by the City Council's decision. 11.2 Payment of Compensation. Contractor shall submit to City a monthly itemized statement which indicates Services performed and hours of Services per project rendered by Contractor. City shall, within 30 days of receiving such statement, review the statement and pay all approved charges thereon. 11.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless it receives prior, written authorization from the City. 11.4 Extra Work. At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work without prior, written authorization from City's Representative. 12. Insurance. Contractor shall have insurance as follows: 12.1. General Liability (including premises and operations, contractual liability, personal injury, independent contractors liability): Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of comprehensive General liability insurance, with limits of One Million Dollars ($1,000,000.00) for each occurrence and in the aggregate, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or July 2005 ECIS FOG Inspections.DOC 3 negligent acts or omissions of Contractor, its officers, employees, agents and independent contractors. if such insurance contains a general aggregate limit, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be three times the occurrence limit. 12.2. Automobile Liability (including owned, non - owned, and hired autos): Contractor shall at all times during the Term of this Agreement also carry, maintain, and keep in full force and effect a policy or policies of commercial automobile liability insurance with a combined single limit of One Million Dollars ($1,000,000.00), single limit, per occurrence for bodily injury and property damage, which will cover the drivers and automobiles used to perform Services pursuant to this Agreement. Such insurance shall include coverage for owned, non - owned, and hired automobiles. 12.3. Workers Compensation. Contractor shall, to the extent required by state law, provide 'Workers' Compensation Insurance, including employer's liability coverage, for the protection of Contractor's employees, with a minimum limit of One Million Dollars ($1,000,000) or the amount required by law, whichever is greater. Contractor shall file a certificate of insurance which evidences that Contractor is in compliance with said Worker's Compensation Insurance requirement. Contractor shall require all subcontractors similarly to provide such Workers' Compensation Insurance and certificates of insurance for their respective employees. 12.4. Contractor agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Agreement for default by Contractor, or, if insurance is available at reasonable cost, City may take out the necessary insurance and pay, at Contractor expense, the premium thereon. 12.5. The general liability policy shall be endorsed to state that City, its officers, officials, employees, agents, representatives and volunteers (collectively hereinafter "City and City Personnel ") shall be covered as additional insureds with respect to the work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work. The automobile liability policy shall be endorsed to state that City and City Personnel shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any automobile owned, leased, hired or borrowed by Contractor or for which Contractor is responsible. 12.6. The insurance provided by Contractor shall be primary to any coverage available to City and shall provide that any insurance or self - insurance maintained by City or City Personnel shall be in excess of Contractor's insurance and shall not contribute with it. 12.7. The insurance provided by Contractor shall be endorsed to state that the insurer shall waive all rights of subrogation against City and City Personnel. 12.8. The policy or policies required herein shall be issued by an insurer admitted in the State of California with a rating of at least B +, VII in the latest edition of A.M. Best's insurance guide. July 2005 ECIS FOG Inspections.DOC 4 12.9. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates shall also specifically state that the coverage contained in those policies affords insurance in compliance with the terms and conditions as set forth in this Agreement. 12.10. Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City prior to the execution of this Agreement by City. At the option of City, either the insurer shall reduce or eliminate the deductibles or self - insured retentions as respects City, or Contractor shall procure a bond guaranteeing payment of losses and expenses. 12.11. Notice of Policy Changes. Each such insurance policy shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non - renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, certified, or by personal delivery. In addition to such notice provided to City by the insurer, Contractor shall also provide City with thirty (30) days prior written notice, by certified mail return receipt requested, of the suspension, voiding, cancellation, reduction in coverage or in limits, non - renewal, or material change for any reason, of any such insurance policy or policies. 12.12. Evidence of Coverage. Prior to commencement of work, and at all times during the term of this Agreement, Contractor shall maintain on file with the City Clerk a certificate or certificates of insurance on the form set forth in Exhibit "C ", attached hereto and incorporated herein by this reference, showing that the aforesaid policies are in effect in the required amounts, the additional insureds are named therein, and the policies cannot be canceled, reduced or otherwise modified except on thirty (30) days written notice by the insurance carrier to the City. The duplicate originals and original endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates shall also specifically state that the coverage contained in those policies affords insurance in compliance with the terms and conditions as set forth in this Agreement. The procuring of such insurance or the delivery of duplicate originals and endorsements evidencing the same shall not be construed as a limitation on Contractor's obligation to indemnify City and City Personnel. 12.13. Nothing contained herein shall be construed as limiting in any way Contractor obligations of indemnification under Section 13 or any other extent to which Contractor may be held responsible for payment of damages to persons or property resulting from its operations, including operations and work performed or materials supplied by or on behalf of Contractor, any subcontractors or by anyone directly or indirectly employed by any of them. 13. Indemnification. Contractor shall indemnify, defend, and hold City and City Personnel free and harmless from and against any and all actions, claims, demands, judgments, attomey's fees, costs, damage to property or persons (including wrongful death), penalties, obligations, expenses, loss, or liabilities, in law or equity, that may July 2005 ECIS FOG Inspections.DOC 5 be asserted or claimed by any person or entity in any manner arising out or incident to any of of the acts, errors, or omissions of Contractor, its officials, officers, employees, agents, representatives, consultants, or subcontractors in the performance of any tasks or services for or on behalf of City, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses, whether or not there is concurrent active or passive negligence on the part of City and/or City Personnel; provided, however, that the Contractor shall not be required to indemnify, defend or hold harmless City or City Personnel against claims arising from the sole active negligence or willful misconduct of City or City Personnel. In connection therewith: 13.1 Contractor shall defend, with Counsel acceptable to City, any action or actions filed in connection with any such claimed damage, injury, penalty, obligation or liability, and shall pay all costs and expenses, including all attorney's fees, incurred therewith or in enforcing the indemnity herein provided. 13.2 In the event City and/or any City Personnel is made a party to any action or proceeding filed or prosecuted for any such claimed damage, injury, penalty, obligation or liability, Contractor shall defend City and pay to City any and all costs and expenses incurred by City in such action or proceeding, together with actual attorney's fees and expert witness fees. 13.3 Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or City Personnel, in any such suit, action or other legal proceeding. 13.4 Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City or City Personnel. 13.5 Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against City and City Personnel with respect to those Claims. 14. Compliance with Laws. Contractor shall keep fully informed of all State and Federal laws and County and Municipal ordinances and regulations which in any manner affect those employed by it or in any way affect the performance of services pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of all work and services performed by or on behalf of Contractor. Each and every provision required by law to be inserted into this Agreement shall be deemed to be inserted, and this Agreement shall be read and enforced as though they were included. 14.1 This contract is subject to the provisions of Article 1.5 (commencing at Section 20104) of Division 2, Part 3 of the California Public Contract Code regarding the resolution of public works claims of less than $375,000. Article 1.5 mandates certain procedures for the filing of claims and supporting documentation by the contractor, for the response to such claims by the contracting public agency, for a mandatory meet and confer conference upon the request of the contractor, for mandatory nonbinding July 2005 ECIS FOG Inspections.DOC 6 mediation in the event litigation is commenced, and for mandatory judicial arbitration upon the failure to resolve the dispute through mediation. This contract hereby incorporates the provisions of Article 1.5 as though fully set forth herein. 14.2 This contract is further subject to the provisions of Article 1.7 (commencing at Section 20104.50) of Division 2, Part 3 of the California Public Contract Code regarding prompt payment of contractors by local governments. Article 1.7 mandates certain procedures for the payment of undisputed and properly submitted payment requests within 30 days after receipt, for the review of payment requests, for notice to the contractor of improper payment requests, and provides for the payment of interest on progress payment requests which are not timely made in accordance with this Article. This contract hereby incorporates the provisions of Article 1.7 as though fully set forth herein. 15. Independent Contractor. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor. City shall not in any way or for any purpose become or be deemed to be a partner or employer of Contractor in its business or otherwise, or a joint venturer, or a member of any joint enterprise with Contractor. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Neither Contractor nor any of Contractor's employees shall, at any time, or in any way, be entitled to any sick leave, vacation, retirement, or other fringe benefits from City; and neither Contractor nor any of its employees shall be paid by City any wage or overtime benefit. City is under no obligation to withhold State and Federal tax deductions from Contractor's compensation. Neither Contractor nor any of Contractor's employees shall be included in the competitive service, have any property right to any position, or have any of the rights a City employee might otherwise have in the event of termination of employment. 16. Covenant Against Discrimination. Contractor covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, relation, sex, marital status, national origin, or ancestry, in the performance of this Agreement. Contractor further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) as the same may be amended from time to time. 17. Termination By City. City reserves the right to terminate this Agreement at any time, with or without cause, upon written notice to Contractor. Upon receipt of any notice of termination from City, Contractor shall immediately cease all services hereunder except such as may be specifically approved in writing by City. Contractor shall be entitled to compensation for all services rendered prior to receipt of City's notice of termination and for any services authorized in writing by City thereafter. 18. Right to Stop Work: Termination By Contractor. In the event Contractor has not received a payment for services rendered from the City, Contractor's sole recourse is to stop work. Prior to work, Contractor shall provide written notification that it intends to stop work due to the City's failure to pay for services rendered. If July 2005 ECIS FOG Inspections.DOC 7 Contractor has not received the payment requested in the notice within 30 days of the City's receipt of such notice, Contractor may cease all services hereunder on the thirty-first day after the City receives such written notice.Contractor shall not cease days after City has received such written notice. Contractor shall be entitled to compensation for all services rendered prior to the date of termination and for any services authorized in writing by City thereafter. 19. Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any deault shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 20. Legal Actions. The Superior Courts of the State of Califomia in the County of Orange shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. 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 or any other default by the other party. 21. Attorneys' Fees. If either party to this Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to costs of litigation, arbitration, or mediation, including actual attorney's fees and expert witness fees. 22. Force Majeure. The time period specified in this Agreement for performance of Services may be extended by City because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, provided that Contractor shall within ten (10) days of the commencement of such delay notify City in writing of the causes and length of the delay. If Contractor gives notice of such delay, City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay, when and if in the judgement of City, such delay is justified. City's determination shall be made in writing, and shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused. Contractor's sole remedy shall be extension of this Agreement. July 2005 ECIS FOG Inspections.DOC 8 23. Notices. Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be personally delivered, or delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices shall be delivered to the following addresses: To City: Mark Vukojevic Director of Public Works /City Engineer City of Seal Beach 211 Eighth Street Seal Beach, 90740 To Contractor: Jon Kinley EC1S 12 Via Torre Rancho Santa Margarita, CA 92688 24. Time of Essence. Time is of the essence in the performance of this Agreement. Contractor agrees to respond on -site within 24 hours of request by the City and shall be compensated per exhibit B. 25. Interpretation: Severability. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. 26. Corporate Authority. The person(s) executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 27. Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 28. City's Right to Employ Other Contractors. City reserves right to employ other contractors in connection with this Project. July 2005 ECIS FOG Inspeclions.DOC 9 29. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 30. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 31. Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. IN WITNESS WIIEREOF, the parties have executed and entered into this Agreement for Contract Services as of the date first set forth above. CITY 0 ' BEACH CONTRACTOR _ By: // By: ,. c 4 1, Ci Mana_er Its: &Si J,.:4 Atte t: By: 3 / L.. Its: Prej i Clerk APPROVED AS TO FORM: • a?-) Quinn Barrow City Attorney July 2005 ECIS FOG Inspections.DOC 10 • • EXHIBIT "A" SCOPE OF SERVICES Contractor shall provide on -call fats, oils, and grease inspection services including all labor, materials and equipment to inspect all of the restaurant facilities located within the City of Seal Beach. Contractor shall provide the services described on an as needed basis at various locations citywide including but not limited to all of the existing restaurant facilities. Contractor shall not proceed with any work unless the Director of Public Works or his authorized designee provides prior written work authorization/order to Contractor. All work as authorized shall be completed within 45 calendar days. July 2005 ECIS FOG Inspections.DOC I 1 • 0 EXHIBIT "W' FEE SCIIEDULE July 2005 EC1S FOG (nspections,DOC 12 • • EXHIBIT "C" CERTIFICATE OF INSURANCE July 2005 TCIS FOG Inspections.DOC 13 • • e ECIS ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES Source Control Solutions Date: 12 -14 -05 To: Andy DaSilva /P.E. / City of Seal Beach From: Jon C. Kinley /President /ECIS Re: Fee Schedule Dear Andy: Per your request for the Professional Services Agreement regarding FOG control please see the fee schedule below. SUMMARY OF INSPECTIONS PROGRAM COST: Job Service Cost Grease Control Device Inspections (GCDI) $20 per inspection point GCDI Follow -up Inspection, when required $20 per inspection point Grease Best Management Practices Inspections (GBMP) $30 per FSE inspected GBMP Follow -up Inspections, when Required $30 per FSE inspected Consulting Fees, when services are required $75 per hour Respec submittec, Jon C. Kinley President ECIS 12 VIA TORRE • RANCHO SANTA MARGARITA CA, 92688 • PHONE/FAX: (949) 888— 6536• EMAIL:fidnley@ecisglobal.com