Contract - MTM Construction 2011-09-28 AGREEMENT FOR SERVICES
MTM Construction
This Agreement is made and effective as of September 28, 2011, between the
Costa Mesa Sanitary District, a sanitary district ("District"), and MTM Construction, a
sole proprietorship (CSLB #706655) ("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 sewer level monitoring
devices that will monitor the flow level of District-owned sewer pipes; and
WHEREAS, sewer level monitoring devices will allow District staff to respond
faster and avoid potential sanitary sewer overflows by having these devices installed;
and
WHEREAS, the Consultant has submitted a proposal to the District for installing
such devices as well providing a communication system to monitor flow levels; and
WHEREAS, the District believes it would be in its best interest to enter into an
agreement with the Consultant to provide sewer level monitoring devices.
NOW, THEREFORE the parties hereto do hereby agree as follows:
1. TERM
This Agreement shall commence on October 12, 2011, and shall remain and
continue in effect until tasks described herein are completed by December 13, 2011,
unless sooner terminated pursuant to the provisions of this Agreement. For monitoring
services, the term shall be on a year to year basis, unless terminated sooner as
described in Section 6 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 installing the devices in thirty (30)
calendar days and will continue to providing monitoring services on a month to month
basis unless this agreement is terminated pursuant to the provisions of this Agreement.
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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. The amount for procuring and installing
eleven sewer flow monitoring devices shall not exceed Twenty Nine Thousand Six
Hundred Thirty One Dollars and twenty-five cents ($29,631.25). In addition, the District
agrees to pay consultant a monitoring fee of $75.00 per unit per month, which shall not
exceed Nine Thousand Nine Hundred Dollars ($9,900) per year. These cost shall not
exceed the allotted amount 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 Two Thousand Nine Hundred Sixty Three Dollars
($2,963.00) 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
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Consultant's fees, it shall give written notice to Consultant within ten (10) business days
of receipt of an invoice of any disputed fees set forth on 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 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 General 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.
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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.
(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
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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 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 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 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.
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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
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.
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(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
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: MTM Construction
3151 Terra Seca
Jamul, CA 91935
Attn: Mark T. McAdams
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 MTM Construction 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 Mark McAdams. Consultant shall
provide District fourteen (14) day's notice prior to the departure of Mark McAdams from
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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.
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 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
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Sep 21 11 10:31a P.J. or Mark McAdams 619-669-1890 p.2
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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.
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 MTM CONSTRUC . N•
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General Manager Signature
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ATTES.T:_ ti's lYt i;�K+� ✓ it.
, Typed Name
Dis fctCleek. 0 COr� �!c
Title
APPROVED,AS TO FORM:
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District Counsel
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SEP-21-2011 11:35 619 669 1890 96%i P.02
Exhibit "A"
SCOPE OF SERVICE
Consultant will procure and install eleven (11) Gauger/GSM from Solid AT to be placed
in the following manhole locations. The Gauger/GSM devices shall be installed in the
manholes so that it does not require closed space entry for access and maintenance of
said devices.
1. Eldon- Previous SSO report spilled on Golf Course property which was low
point and now has check valve. New point could be put at collection MH. Depth is
10'
2. 21St- Collection MH. 13'4" depth
3. 23`d- Collection MH is well access and has flanged end of iron pipe discharging
directly into wet well. Gauger/GSM can be placed at MH on SB lane Irvine lane 2
on 23rd St. Depth is 8'4"
4. Harbor- Low point unknown. MH nearest is 14'
5. President- Collection MH is front of panel enclosure. Depth is 71"
6. Irvine- Low point for station is found on Anniversary. Depth is 41" and MH has
float operated flapper valve
7. Santa Ana- Low point is MH behind 2432 Campbell Lane in apartment complex.
Depth is 158"
8. Canyon- Low point is MH on Canyon Drive @ Modjeska in front of apartments.
Depth is 56". Collection MH is 18'4" also
9. Mendoza- Collection MH is 18'4" in front of fenced area
10. Victoria - either 14.6' or 27.3' depending on which manhole to install the sensor
in. On Victoria P.S., District may want to install the sensor in the wet well itself
(which is 27.3' deep) because it will give more notification for a high water
condition than the first upstream manhole.
11. Adams - either 13.8' or 18.5' depending on which manhole to install the senso
in. District recommends using the 18.5' manhole.
Gauger/GSM installed with stainless steel swing-away mounting or removable mounts
for manhole access, IP67 rated battery enclosure or equal. Tadiran TL-5930 batteries
and a PTS device (programmable timer switch)
Gauger/GSM model #'s to be used per site signal strength:
GAM-R1-A6-TC-1 V Internal antenna
GAM R4-A6-TC-1V External antenna
Monitoring Services:
Solid ATs log and forward system (in concert with Consultant's proprietary
communication system)
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Consultant's proprietary communication system
AT&T will be the transmission carrier 'out'
End destination carrier is no factor with Consultant's proprietary communication system
Consultant will provide staff training for field configuration, maintenance requirements of
the Gauger/GSM, as well as training for monitoring and communicating with the
devices.
Consultant will also pre-program the Gauger/GSM to each site conditions.
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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.
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
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.
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(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.
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