Agreement - Michael Balliet Consulting LLC - 2013-02-27 AGREEMENT FOR CONSULTANT SERVICES
This Agreement ("AGREEMENT") is made and effective as of February 27, 2013,
between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT"), and Michael
Balliet Consulting, a Limited Liability Corporation ("CONSULTANT"). In consideration of
the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This AGREEMENT shall commence on February 27, 2013, 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 solid waste agreement performace audit services
described below ("SERVICES") to DISTRICT for DISTRICT's solid waste agreement
performace review audit as described in bid number CMSD-11-12 ("PROJECT").
The SERVICES to be provided are more particularly described in the Scope of
Services attached hereto as Exhibit "A" and incorporated herein by reference.
3. PERFORMANCE
CONSULTANT shall perform all SERVICES under this AGREEMENT in a skillful
and competent manner, consistent with the standards generally recognized as being
employed by consultants in the same discipline in the State of California and consistent
with all applicable laws. CONSULTANT shall provide DISTRICT its work product in
"turnkey" form. DISTRICT reserves the right to . perform reasonable testing of
CONSULTANT's work product before accepting the same. CONSULTANT shall warrant
that all services provided and equipment installed shall perform in a workmanlike
manner and be fit for its particular purpose.
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4. COMPENSATION
Compensation for the SERVICES shall be based on the actual amount of time
spent in adequately performing the SERVICES and shall be billed at the hourly rate(s)
of $105. However, unless expressly agreed in a written change order in advance by
DISTRICT, the cost to DISTRICT for the SERVICES shall not exceed Twenty-one
Thousand Dollars ($21,000.00). The written change order requirement cannot be
waived. Failure to submit a written change order and receive written approval by the
DISTRICT prior to performing extra work shall constitute a waiver of a claim for
additional time or compensation.
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Invoices shall be submitted to DISTRICT monthly as performance of the
SERVICES progresses. DISTRICT shall review and pay the approved charges on such
invoices in a timely manner. SERVICES on the PROJECT shall begin immediately and
be completed by Tuesday, May 14, 2013, unless extended by DISTRICT in writing.
5. PREVAILING WAGES
CONSULTANT understands that this job, if over One Thousand Dollars
($1,000.00) in value and not exempt, requires compliance with the prevailing wage law.
(Labor Code §§ 1720 et seq.) As such, DISTRICT will ascertain the prevailing wages to
be paid on this job from the Director of Industrial Relations. Said amounts are listed at
http://www.dir.ca.gov/dlsr/pwd/index.htm. CONSULTANT agrees to pay prevailing
wages and maintain prevailing wage records regarding those payments.
CONSULTANT is also required to comply with the apprentice requirements.
CONSULTANT shall defend, indemnify, and hold the DISTRICT, its elected officials,
officers, employees, and agents free and harmless from any claim or liability arising out
of any failure or alleged failure to comply with the Prevailing Wage Laws.
CONSULTANT recognizes that state law makes eight (8) hours a day's work, and any
worker working in excess of that time must be paid overtime. (Labor Code § 1813.)
6. INSURANCE
CONSULTANT shall, at its expense, procure and maintain for the duration of this
AGREEMENT insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of this AGREEMENT by the
CONSULTANT, its agents, representatives, employees, or subcontractors.
CONSULTANT shall also require all of its subcontractors to procure and maintain the
same insurance for the duration of this AGREEMENT. If CONSULTANT is an employer
or otherwise hires one (1) or more employees during the term of this PROJECT,
CONSULTANT shall procure and maintain workers' compensation coverage for such
employees which meets all requirements of state law (Labor Code § 1861).
CONSULTANT shall also provide errors and omissions professional liability insurance
appropriate to its profession in an amount, with conditions, and for a term acceptable to
the DISTRICT.
At a minimum, CONSULTANT is required to submit proof of insurance in
accordance with the following standards:
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.
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Minimum Limits of Insurance: CONSULTANT shall maintain limits of no less
than:
(A)General Liability. One Million Dollars ($1,000,000.00) 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.
(B)Automobile Liability. One Million Dollars ($1,000,000.00) per accident for
bodily injury and property damage.
(C)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 One Million Dollars ($1,000,000.00) per accident for bodily
injury or disease.
Insurance Endorsements: The insurance policies shall contain the following
provisions, and a separate endorsement stating to add the following provisions to the
insurance policies shall be submitted and approved by DISTRICT:
(A)General Liability. The general liability policy shall be endorsed to state that:
(1) DISTRICT, its directors, officials, officers, employees, agents, and volunteers shall
be covered as additional insureds 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 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 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 Employer's Liability Coverage. The insurer
shall agree to waive all rights of subrogation against 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)AII 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 DISTRICT, and (B) any failure to comply with reporting or
other provisions of the policies, including breaches or warranties, shall not affect
coverage provided to DISTRICT, its directors, official, officers, employees, agents, and
volunteers.
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Acceptability of Insurers: Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A-:VIII, licensed to do business in California, and
satisfactory to DISTRICT.
All insurance documents must be submitted and approved by the District's Risk
Manager prior to execution of any AGREEMENT with DISTRICT.
7. 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, agents, employees,
or subconsultants of CONSULTANT.
8. TERMINATION
DISTRICT may terminate this AGREEMENT at any time with or without cause. If
DISTRICT terminates this AGREEMENT without cause before PROJECT completion,
CONSULTANT shall be entitled to be paid for SERVICES adequately completed prior to
the notification of termination. CONSULTANT may terminate this AGREEMENT for
cause only.
9. MISCELLANEOUS
This AGREEMENT shall be interpreted according to the laws of the State of
California and any action arising from this AGREEMENT shall be brought in the superior
or federal district court with jurisdiction over DISTRICT.
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This AGREEMENT and the attachments hereto shall contain the entire
agreement between the parties. This AGREEMENT cannot be modified except in a
writing signed by both parties. In the event of inconsistency between this AGREEMENT
and any attachment hereto, this AGREEMENT shall control in all respects.
DISTRICT shall own all work product prepared in the course of providing the
SERVICES under this AGREEMENT. In the event of termination of this AGREEMENT,
CONSULTANT shall immediately turn all work product over to DISTRICT. If specialized
software or computer hardware is required to view or transmit said work product,
CONSULTANT shall make that software and hardware available to the DISTRICT at no
cost during normal business hours.
This AGREEMENT cannot be assigned without the prior written consent of the
DISTRICT.
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CONSULTANT is and shall at all times remain as to DISTRICT an independent
contractor. 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 this AGREEMENT, DISTRICT shall not pay salaries, wages, or other
compensation to CONSULTANT for performing any services hereunder for DISTRICT.
DISTRICT shall not be liable for compensation or indemnification to CONSULTANT for
injury or sickness arising out of performing any services hereunder.
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 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. Response to a subpoena or court order shall not
be considered "voluntary" provided CONSULTANT gives DISTRICT notice of such court
order or subpoena.
CONSULTANT warrants that the individual who has signed this AGREEMENT
has the legal power, right, and authority to make this AGREEMENT and bind the
CONSULTANT hereto. If you agree with the terms of this AGREEMENT, indicate by
signing and dating two original agreements where indicated below and return both to
the undersigned. Once the documents are fully executed, one original will be returned
to you for your records.
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COSTA MESA SANITARY DISTRICT MICHAEL BALLIET CONSULTING
Approved by: Reviewed and Accepted by:
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Scott C. Carroll, General Managerignatur-- ;or ---■1
Approved as to Form: Typed Name
ATTEST: PreSi dent
1001. 1 A , / Title
:�L.i. 3 - 9 -,o1 3
17 «:- ' Date
APPROVED AS TO FORM:
ti ._,-(!.------(
Colin Burns, Associate District Counsel
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