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Contract - Willdan Engineering - 2015-03-11 AGREEMENT FOR CONSULTANT SERVICES This Agreement ("AGREEMENT") is made and effective as of March 11, 2015, between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT"), and Willdan Engineering, a California Corporation ("CONSULTANT"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, CONSULTANT is a leading nationwide provider of value-added professional technical and consulting services and DISTRICT desires to utilize the services of CONSULTANT to perform a Sewer System Management Plan (SSMP) Internal Audit for the DISTRICT; and WHEREAS, the total work effort is estimated to require 72 hours and be accomplished over a 15 week period, including reviews and Board of Directors presentation, as indicated in their proposal and attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the DISTRICT has determined that the CONSULTANT possesses the professional skills and ability to provide said services for the DISTRICT; NOW, THEREFORE, the parties hereto agree as follows: 1. TERM This AGREEMENT shall commence on March 11, 2015, and shall remain and continue in effect until tasks described herein are completed, unless sooner terminated pursuant to the provisions of this AGREEMENT. 2. SERVICES CONSULTANT shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. CONSULTANT shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. 3. PERFORMANCE CONSULTANT shall, at all time, faithfully, competently, and to the best of his/her/its ability, experience, and talent perform all tasks described herein. CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONSULTANT hereunder in meeting its obligations under this AGREEMENT. 1 PSA 12 07 4. DISTRICT MANAGEMENT The General Manager shall represent DISTRICT in all matters pertaining to the administration of this AGREEMENT, including review and approval of all products submitted by CONSULTANT. Notwithstanding the foregoing, the General Manager's authority to enlarge the tasks to be performed or change CONSULTANT's compensation is subject to Section 5 hereof. 5. PAYMENT (a) The DISTRICT, upon presentation of an invoice, agrees to pay the CONSULTANT Ten Thousand, Five Hundred and Eighty Four dollars ($10,584) for the total term of the AGREEMENT [in accordance with Exhibit A, attached hereto and incorporated herein by reference OR upon completion of the task]. No other expenditures made by CONSULTANT shall be reimbursed by DISTRICT. (b) CONSULTANT shall not be compensated for any services rendered in connection with its performance of this AGREEMENT that are in addition to those set forth herein, unless such additional services are requested in a written change order and are approved in advance and in writing by DISTRICT. The written change order requirement cannot be waived. The General Manager may approve change orders for additional work not to exceed the cumulative value of ten percent (10%) of the total contract sum. Any additional work in excess of this cumulative amount shall be approved by the Board of Directors. (c) CONSULTANT will submit invoices upon task completion unless otherwise agreed. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If DISTRICT disputes any of CONSULTANT's fees, DISTRICT shall give written notice to CONSULTANT within thirty (30) days of receipt of an invoice of any disputed fees contained in the invoice. 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The DISTRICT may, at any time, for any reason, with or without cause, suspend or terminate this AGREEMENT, or any portion hereof, by serving upon the CONSULTANT written notice. Upon receipt of said notice, the CONSULTANT shall immediately cease all work under this AGREEMENT, unless the notice provides otherwise. If the DISTRICT suspends or terminates a portion of this AGREEMENT, such suspension or termination shall not make void or invalidate the remainder of this AGREEMENT. (b) In the event this AGREEMENT is terminated pursuant to this Section, the DISTRICT shall pay to CONSULTANT the actual value of the work performed up to the time of termination, provided that the work performed is of value to the DISTRICT. 2 PSA 12 07 CONSULTANT shall immediately turn over all work-product to DISTRICT in a readily usable form. Upon termination of the AGREEMENT pursuant to this Section, the CONSULTANT will submit an invoice to the DISTRICT pursuant to Section 5. 7. DEFAULT OF CONSULTANT (a) The CONSULTANT's failure to comply with the provisions of this AGREEMENT shall constitute a default. In the event that CONSULTANT is in default for cause under the terms of this AGREEMENT, DISTRICT shall have no obligation or duty to continue compensating CONSULTANT for any work performed after the date of default and can terminate this AGREEMENT immediately by written notice to the CONSULTANT. If such failure by the CONSULTANT to make progress in the performance of work hereunder arises out of causes beyond the CONSULTANT's control, and without fault of negligence of the CONSULTANT, it shall not be considered a default. (b) As an alternative to the procedure for immediate termination for default set forth in subparagraph (a), if the District Manager or his/her delegate determines that the CONSULTANT is in default in the performance of any of the terms or conditions of this AGREEMENT, he/she may in his/her discretion cause to be served upon the CONSULTANT a written notice of the default and demand to cure. The CONSULTANT shall have ten (10) days after service upon it of said notice to cure the default by rendering a satisfactory performance. In the event that the CONSULTANT fails to cure its default within such period of time, the DISTRICT shall have the right, notwithstanding any other provision of this AGREEMENT, to terminate this AGREEMENT without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this AGREEMENT. 8. OWNERSHIP OF DOCUMENTS (a) CONSULTANT shall maintain complete and accurate records with respect to the professional services required by this AGREEMENT and will produce the work product specified in Exhibit A and other such information required by DISTRICT that relate to the performance of services under this AGREEMENT. CONSULTANT shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. CONSULTANT shall provide free access to the representatives of DISTRICT or its designees at reasonable times to such books and records; shall give DISTRICT the right to examine and audit said books and records; shall permit DISTRICT to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this AGREEMENT. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. 3 PSA 12 07 (b) Upon completion, termination, or suspension of this AGREEMENT, all work products reduced to any medium and other documents prepared in the course of providing the services to be performed pursuant to this AGREEMENT shall become the sole property of the DISTRICT and may be used, reused, or otherwise disposed of by the DISTRICT without the permission of the CONSULTANT. DISTRICT's reuse of such materials on a project other than the project for which they were originally intended shall be at the sole risk of the DISTRICT. With respect to computer files, CONSULTANT shall make available to the DISTRICT, at the CONSULTANT's office and upon reasonable written request by the DISTRICT, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files. Said software and hardware shall be made available to DISTRICT at CONSULTANT's cost. 9. INDEMNIFICATION (a) Indemnification for Professional Liability. When the law establishes a professional standard of care for CONSULTANT's services, to the fullest extent permitted by law, CONSULTANT shall indemnify, protect, defend, and hold harmless DISTRICT and any and all of its officials, employees, and agents from and against any and all losses, liabilities, damages, costs, and expenses, including attorney's fees and costs to the extent the same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, its officers, agents, employees, or subconsultants (or any entity or individual that CONSULTANT shall bear the legal liability thereof) in the performance of professional services under this AGREEMENT. (b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the fullest extent permitted by law, CONSULTANT shall indemnify, defend, and hold harmless DISTRICT and any and all of its employees, officials, and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses, or costs of any kind, whether actual, alleged, or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, pertain to, relate to, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this AGREEMENT by CONSULTANT or by any individual or entity for which CONSULTANT is legally liable, including, but not limited to, officers, agent, employees, or subconsultants of CONSULTANT. 10. INSURANCE CONSULTANT shall maintain prior to the beginning of and for the duration of this AGREEMENT insurance coverage as specified in Exhibit B attached to and made part of this AGREEMENT. 4 PSA 12 07 , 11. INDEPENDENT CONSULTANT (a) CONSULTANT is and shall at all times remain as to the DISTRICT a wholly independent consultant. The personnel performing the services under this AGREEMENT on behalf of CONSULTANT shall at all times be under CONSULTANT's exclusive direction and control. Neither DISTRICT nor any of its officers, employees, or agents shall have control over the conduct of CONSULTANT or any of CONSULTANT's officers, employees, or agents, except as set forth in this AGREEMENT. CONSULTANT shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the DISTRICT. CONSULTANT shall not incur or have the power to incur any debt, obligation, or liability whatsoever against DISTRICT or bind DISTRICT in any manner. (b) No employee benefits shall be available to CONSULTANT in connection with the performance of this AGREEMENT. Except for the fees paid to CONSULTANT as provided in the AGREEMENT, DISTRICT shall not pay salaries, wages, or other compensation to CONSULTANT for performing services hereunder for DISTRICT. DISTRICT shall not be liable for compensation or indemnification to CONSULTANT for injury or sickness arising out of performing services hereunder. 12. LEGAL RESPONSIBILITIES The CONSULTANT shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this AGREEMENT. The CONSULTANT shall at all times observe and comply with all such laws and regulations. The DISTRICT and its officers and employees shall not be liable at law or in equity occasioned by failure of the CONSULTANT to comply with this Section. 13. UNDUE INFLUENCE CONSULTANT declares and warrants that no undue influence or pressure has been used against or in concert with any officer or employee of the DISTRICT in connection with the award, terms, or implementation of this AGREEMENT, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the DISTRICT will receive compensation, directly or indirectly, from CONSULTANT or from any officer, employee, or agent of CONSULTANT in connection with the award of this AGREEMENT or any work to be conducted as a result of this AGREEMENT. Violation of this Section shall be a material breach of this AGREEMENT entitling the DISTRICT to any and all remedies at law or in equity. 5 PSA 12 07 14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of DISTRICT, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to the project during his/her tenure or for one year thereafter shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the project performed under this AGREEMENT. 15. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by CONSULTANT in the performance of this AGREEMENT shall be considered confidential and shall not be released by CONSULTANT without DISTRICT's prior written authorization. CONSULTANT and its officers, employees, agents, or subconsultants shall not, without written authorization from the General Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, and testimony at depositions, response to interrogatories, or other information concerning the work performed under this AGREEMENT or relating to any project or property located within the DISTRICT. Response to a subpoena or court order shall not be considered "voluntary" provided CONSULTANT gives DISTRICT notice of such court order or subpoena. (b) CONSULTANT shall promptly notify DISTRICT should CONSULTANT or its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this AGREEMENT or the work performed thereunder or with respect to any project or property located within the DISTRICT. DISTRICT retains the right, but has no obligation, to represent CONSULTANT and/or be present at any deposition, hearing, or similar proceeding. CONSULTANT agrees to cooperate fully with DISTRICT and to provide the opportunity to review any response to discovery requests provided by CONSULTANT. However, DISTRICT's right to review any such response does not imply or mean that DISTRICT has a right to control, direct, or rewrite said response. (c) CONSULTANT covenants that neither he/she/it nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly nor indirectly, which will conflict in any manner or degree with the performance of their services hereunder. CONSULTANT further covenants that in the performance of this AGREEMENT, no person having such interest shall be employed by it/them as an officer, employee, agent, or subconsultant. CONSULTANT further covenants that CONSULTANT has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the DISTRICT or the study area and further covenants and agrees that CONSULTANT and/or its subconsultants shall provide no service or 6 PSA 12 07 enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the DISTRICT or the study area prior to the completion of the work under this AGREEMENT. 16. NOTICES Any notices which either party may desire to give to the other party under this AGREEMENT must be in writing and may be given by: (i) personal service, (ii) delivery by a reputable document delivery service, such as, but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To DISTRICT: Costa Mesa Sanitary District 628 West 19th Street Costa Mesa, California 92627 Attn: District Clerk To CONSULTANT: Willdan Engineering 2401 East Katella Ave., Suite 450 Anaheim, CA 92806 Attn: Ray Wellington, PE 17. ASSIGNMENT The CONSULTANT shall not assign the performance of this AGREEMENT, nor any part thereof, nor any monies due hereunder, without prior written consent of the DISTRICT. 18. LICENSES At all times during the term of this AGREEMENT, CONSULTANT shall have in full force and effect all licenses required of it by law for the performance of the services described in this AGREEMENT. 19. GOVERNING LAW DISTRICT and CONSULTANT understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this AGREEMENT and also govern the interpretation of this AGREEMENT. Any litigation concerning this AGREEMENT shall take place in the superior or federal district court with jurisdiction over the DISTRICT. 7 PSA 12 07 20. ENTIRE AGREEMENT This AGREEMENT contains the entire understanding between the parties relating to the obligations of the parties described in this AGREEMENT. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this AGREEMENT and shall be of no further force or effect. Each party is entering into this AGREEMENT based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 21. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL CONSULTANT is bound by the contents of Exhibit A, hereto and incorporated herein by this reference. In the event of conflict, the requirements of DISTRICT's Request for Proposals and this AGREEMENT shall take precedence over those contained in the CONSULTANT's proposals. 22. MODIFICATION No modification to this AGREEMENT shall be effective unless it is in writing and signed by authorized representatives of the parties hereto. This written modification requirement cannot be waived. 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this AGREEMENT on behalf of CONSULTANT warrant(s) and represent(s) that he/she/they has/have the authority to execute this AGREEMENT on behalf of the CONSULTANT and has/have the authority to bind CONSULTANT to the performance of its obligations hereunder. 24. INTERPRETATION In the event of conflict or inconsistency between this AGREEMENT and any other document, including any proposal or Exhibit hereto, this AGREEMENT shall control unless a contrary intent is clearly stated. 25. BUSINESS LICENSE CONSULTANT shall obtain a business license from the City of Costa Mesa unless legally exempt. 8 PSA 12 07 IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT WILLDAN ENGINEERING L),& General Manager Signature ATTEST: L. L. \AL) Typed Name AtteLab Dis riot leW �`('. v\cq e s∎14 Title APPRO' ED AS TO FORM: District Counsel 9 PSA 12 07 4P SANIr4,, EXHIBIT B 4 `), O,. Q ao o ' ('-',���,^��.� '� Costa Mesa Sanitary District a 9°' 44)RPORATtiO� . . .an Independent Special District Memorandum To: Contractors/Consultants From: Denise Martinez, Interim Administrative Services Manager Date: March 11, 2015 Subject: District Insurance Requirements Minimum Scope of Insurance 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 (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Minimum Limits of Insurance Contractor shall maintain limits no less than: General Liability $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability $1,000,000 per accident for bodily injury and property damage Workers'Compensation and Employer's Liability Workers' Compensation limits as required by the Labor Code of the State of California Employer's Liability limits of $1 ,000,000 per accident for bodily injury or disease. �Gt,or.:.urs1�'. o Protecting our community's health and the environment by providing solid waste and sewer collection services. www.cmsdca.gov Insurance Endorsements The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the Costa Mesa Sanitary District to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the Costa Mesa Sanitary District, its directors, officials, officers, employees, agents and volunteers shall be covered as additional Insured with respect to the Work or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the Costa Mesa Sanitary District, 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. Any insurance or self-insurance maintained by the Costa Mesa Sanitary District, 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 in any way. (B) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Costa Mesa Sanitary District, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (C) All Coverage. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be canceled except after thirty (30) days prior written notice by first class mail, postage prepaid, has been mailed to the Costa Mesa Sanitary District, ten (10) days notice if cancellation is due to nonpayment of premium; and (B) any failure to comply with reporting or other provisions of the policies, including breaches or warranties, shall not affect coverage provided to the Costa Mesa Sanitary District, its directors, officials, officers, employees, agents and volunteers. Acceptability of Insurers 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 Costa Mesa Sanitary District. All insurance documents must be submitted and approved by the District's Risk Manager prior to execution of any Agreement with the Costa Mesa Sanitary District. *Please note that the Administrative Service Manager can waive certain insurance requirements if all of the work or services will be completed off of Costa Mesa Sanitary District or affiliated entities property.