Loading...
Contract - Pacific Data - 2011-08-30 AGREEMENT FOR CONSULTANT SERVICES Pacific Data Electric, Inc. This Agreement is made and effective as of August 30 2011 between the Costa Mesa Sanitary District, a sanitary district ("District"), and Pacific Data Electric, Inc. a California Corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows. Recitals WHEREAS the District desires to procure and install permanent emergency standby generators at District-owned pump stations to ensure their continual operation in the event of an emergency and/or a catastrophic disaster and WHEREAS a feasibility study needs to be conducted to determine if District- owned pump stations can accommodate the installation of permanent standby generators as well as meeting agencies building requirements; and WHEREAS the Consultant has submitted a proposal to the District for conducting such a study and WHEREAS the District believes it would be in its best interest to enter into an agreement with the Consultant to provide a feasibility study NOW THEREFORE the parties hereto do hereby agree as follows. 1 TERM This Agreement shall commence on September 6 2011 and shall remain and continue in effect until tasks described herein are completed as stated in the proposal dated October 17 2011 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. From the date of the 'Notice to Proceed' was issued, Consultant shall complete the tasks in thirty (30) business days. 1 3. PERFORMANCE Consultant shall, at all times, 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. 4. DISTRICT MANAGEMENT District's General Manager shall represent District in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. The District General Manager shall be authorized to act on District's behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant's compensation, subject to Section 5 hereof 5. PAYMENT (a) The District agrees to pay Consultant in accordance with the tasks as set forth in Exhibit A attached hereto and incorporated herein by this reference as though set forth in full, upon completion of the task. This amount shall not exceed Thirty Thousand Dollars ($30,000.00) for the total term of this Agreement unless additional payment is approved as provided in this Agreement. Said sum includes travel and other costs. (b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the District General Manager Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by District General Manager and Consultant at the time District's written authorized is given to Consultant for the performance of said services. The District General Manager may approve additional work not to exceed the greater of Three Thousand Dollars ($3,000.00) or 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 a progress invoice upon 50% task completion and a final invoice upon 100% task completion. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the District disputes any of Consultant's fees, it shall give written notice to Consultant within thirty (10) business days of receipt of an invoice of any disputed fees set forth on the invoice. 2 Cr i\ 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 at least ten (10) days prior 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 the District terminates this Agreement without cause pursuant to this Section, the District shall pay to Consultant the actual value of the work performed up to the time of termination. 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) 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 shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which 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 3 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. (b) Upon completion, termination or suspension of this Agreement, all work product 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. 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. 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 ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission 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 full 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 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. 4 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 part of this Agreement. Such coverage shall include automotive commercial general liability and professional error coverage, if applicable. 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 Consultants 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 whatever 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 Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No 5 4. officer or employee of the Costa Mesa Sanitary 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 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 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 performance of this Agreement shall be considered confidential and shall not be released by Consultant without District's prior written authorization. Consultant, 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, 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, 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 and 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 the right by District to control, direct, or rewrite said response. (c) Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or 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 them as an officer employee, agent or subconsultant. Consultant further covenants that Consultant has not contracted with 6 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 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: Pacific Data Electric, Inc. 9970 Bell Ranch Drive, Suite 109 Santa Fe Springs, CA 90670 Attn: Dan Cohee, Senior Project Manager 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. Because of the personal nature of the services to be rendered pursuant to this Agreement, only Pacific Data Electric, Inc. shall perform the services described in this Agreement. The Consultant may use assistants, under its direct supervision, to perform some of the services under this Agreement; however all client contact and interaction regarding professional services shall be provided by Dan Cohee. Consultant shall provide District fourteen (14) day's notice prior to the departure of Dan Cohee from Consultant's employ Should he/she leave Consultant's employ the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this agreement, Consultant's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the Board of Directors and the Consultant. 7 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 The 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 municipal, superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 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 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder 8 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. MODIFICATION This Agreement may not be modified orally but only in writing, signed by a person with authority to amend this Agreement. 26. BUSINESS LICENSE Consultant shall obtain a business license from the City of Costa Mesa unless legally exempt. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT PACIFIC DATA ELECTRIC INC 7161 I General Manager Sidaature ATTEST _ Shelley Keltner Typed Name ThaL Disyict t Clerk _ CEO Title APPROVED AS O FORM: District Counsel 9 Exhibit A SCOPE OF SERVICE Consultant will provide a detailed feasibility study and schematic design sketches to determine if the project can move forward to design and construction document phases. Consultant will conduct a detailed As Built" of the existing areas of proposed construction including architectural and structural systems, mechanical and plumbing systems and will require existing as built drawings to be provided from the District. Consultant will also consult with local agencies to determine zoning, planning, building, fire and other requirements specific to the project. The Consultant will provide: • Physical architectural and structural inspection and collect data including, but not limited to mechanical, electrical and plumbing information. • Contact landlord or PM to obtain necessary information and requirements pertaining to the proposed site. • Obtain zoning, building code, business operating requirements from municipal agencies including but not limited to city county AQMD and/or other agencies. • Request copy of conditions of approval and certificate of occupancy for proposed site from owner or PM for comparison to proposed function. • Provide report indicating findings and result of research as well as proposed course of action narrative and schematic design to describe recommended course of action. 10 \` Exhibit 'B' 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 Consultant shall maintain limits no less than: (1) 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; (2) Automobile Liability $1,000,000 per accident for bodily injury and property damage; and (3) 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. Professional Liability Consultant shall procure and maintain, and require its sub- consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the 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 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 District, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultants scheduled underlying coverage. Any insurance or self-insurance maintained by the 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 11 f (B) Automobile Liability The automobile liability policy shall be endorsed to state that: (1) the District, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured 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; and (2) the insurance coverage shall be primary insurance as respects the 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 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 (C) Workers Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the 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. (D) All Coverage. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested has been given to the District; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the 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 District. 12