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Contract - Eco Partners, Inc. - 2017-07-21 AGREEMENT FOR CONSULTANT SERVICES This Agreement ("AGREEMENT") is made and effective as of July 21, 2017, between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT"), and Eco Partners, Inc., an Indiana Corporation, hereinafter referred to as ("CONSULTANT"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, CONSULTANT is an independent contractor that has represented that it is qualified to perform the duties set forth herein and DISTRICT desires to utilize the services of CONSULTANT to compile and distribute quarterly newsletter publications entitled "Living Green..."; NOW, THEREFORE, the parties hereto agree as follows: 1. Scope of Work For the remuneration stipulated, the DISTRICT hereby engages the services of CONSULTANT to compile and distribute quarterly newsletter publications "Living Green...": CONSULTANT shall provide the following: III 1.1 Compile and mail out 21,500 copies and one electronic version of"Living Green..." in each of the following months: September 2017, December 2017, March 2018, and June 2018. 1.2 Provide general design and layout of the entire publication. 1.3 Draft copy for DISTRICT to revise and/or customize for pages one through publication. h four of the 1.4 Edit DISTRICT copy for publication. 1.5 Provide final copy for DISTRICT approval prior to printing. 1.6 Coordinate distribution and mailingbased on mailinglistprovided by DISTRICT. 1.7 Provide a Spanish language translation upon request of DISTRICT and at additional cost to be agreed upon at such time. 1 The DISTRICT shall do the following in a timely manner: 2.1 Adhere to production schedule (Exhibit A). 2.2 Provide written approval on final copy for printing. 2.3 Provide a complete and updated mailing list in a database format. 2.4 Pay for postage necessary for newsletter mailing. 2. Scheduling a. CONSULTANT shall be responsible for making sure that the quarterly newsletter publications are distributed on schedule as indicated on Exhibit A. b. If the DISTRICT determines that there are deficiencies in the performance of this Agreement, the DISTRICT will provide a written notice to the CONSULTANT stating the deficiencies and specifying a time frame to correct the specified deficiencies. This time frame shall be reasonable, as determined by the DISTRICT to correct the specified deficiencies. c. Should the CONSULTANT fail to correct any deficiencies with the stated time frame, the DISTRICT may exercise the following measures: i. Deduct from the CONSULTANT's payment the amount necessary to correct the deficiency, include DISTRICT overhead costs, and impose a deficiency deduction. ii. Withhold the entire or partial payment. iii. Terminate the AGREEMENT. 3. Compensation a. For the services delineated above, the DISTRICT, upon presentation of an invoice, shall pay the CONSULTANT quarterly progress payments of approximately $10,056.86, after quarterly newsletters have been completed and mailed, up to the amount of$40,227.44 per fiscal year. b. The total compensation amount is itemized as follows: Description Per Quarter Per Year Newsletter Production $3,218.00 $12,872.00 Shipping $25.00 $100.00 Mailing House Preparation $1,300.00 $5,200.00 Subtotal $4,543.00 $18,172.00 Estimated Postage $5,513.86 $22,055.44 Estimated Total $10,056.86 $40,227.44 2 c. Postage is estimated and shall be billed at actual cost. d. Payment may be made by check, payable to Eco Partners, Inc. e. No other expenditures made by CONSULTANT shall be reimbursed by DISTRICT. CONSULTANT shall submit an invoice to the DISTRICT for services rendered. Invoices shall be paid within 15 business days of receipt. 4. 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 meet all requirements of state law(Labor Code § 1861). 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. 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. 3 (C) Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the Labor Code of the State of California. Employers' 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 the DISTRICT: (A) General Liability. The general liability policy shall be endorsed to state that: (1) "The Costa Mesa Sanitary District, its elected and appointed officials, agents, officers, volunteers and employees are 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 elected and appointed officials, agents, officers, volunteers and employees, 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 elected and appointed officials, agents, officers, volunteers and employees 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 elected and appointed officials, agents, officers, volunteers and employees 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 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 the DISTRICT, its elected and appointed officials, agents, officers, volunteers and employees. 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. 4 5. Term This AGREEMENT shall be for a period of one year from July 21, 2017 to June 30, 2018 with a one-year extension at the DISTRICT'S discretion. If exercised, the option year two shall be effective from July 1, 2018 to June 30, 2019. 6. Services CONSULTANT shall perform the tasks described and set forth in Section 1, above, and 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. 7. 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 8 hereof. 8. Payment (a) The DISTRICT, upon presentation of an invoice, agrees to pay the CONSULTANT progress payments, after services have been rendered or materials purchased, up to the amount not to exceed the amount set forth in Section 3, above, and in accordance with Exhibit A. 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 the above. 9. 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. 5 (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. 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 8. 10.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 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 may in his/her discretion cause to be served upon the CONSULTANT a written notice of the default and demand a cure. The CONSULTANT shall have ten (10) days after service 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. 11. 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 relates 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 6 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. Said software and hardware shall be made available to DISTRICT at CONSULTANT's cost. 12. 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 elected and appointed officials, agents, officers, volunteers and employees 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 elected and appointed officials, agents, officers, volunteers and employees 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. 7 13. Independent Contractor (a) CONSULTANT is and shall at all times remain as to the DISTRICT a wholly independent contractor. 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. 14. 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. CONSULTANT is aware of the California mass mailing law that prevents elected officials from being "featured" in mass mailings of 200 or more pieces of mail send at DISTRICT expense. 15. 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. 8 16. 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. 17. 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 290 Paularino Avenue Costa Mesa, CA 92626 Attn: District Clerk To CONSULTANT: Eco Partners, Inc(ECO) P.O. Box 496 Carmel, IN 46082 Attn: Elizabeth Roe, President 18. 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. 19. 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. 20. 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 9 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. 21. 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. 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. II 10 IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to year firstabove written. this dayand be executed COSTA MESA SANITARY DISTRICT ECO PARTNERS, INC General Manager ig :ture ATTEST: Elizabeth Roe Typed Name �_• A A 4 President istrict Clerk gr Title APPROVED AS TO FORM: 64%^1. District Counsel 11