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Contract - Robin B. Hamers, Inc. - 2020-09-01 AGREEMENT FOR CONSULTANT SERVICES (Robin B. Hamers, Inc. Engineering Services) This Agreement ("AGREEMENT") is made and effective as of September 1, 2020, between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT"), and Robin B. Hamers & Associates, Inc., a professional corporation ("CONSULTANT"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Whereas, Robin B. Hamers served as District Engineer since 1981 and the District contracted with Robin B. Hamers & Associates, Inc. for District Engineer and civil engineering services since that time; and Whereas, Robin B. Hamers passed away on January 9, 2020; and Whereas, the Robin B. Hamers & Associates, Inc. continued to provide District Engineer and civil engineering services after Robin B. Hamers passed; and Whereas, the District now desires to hire an in-house District Engineer but continue with Robin B. Hamers &Associates, Inc. for general civil engineering, including but not limited to capital facility projects. Now, therefore the parties hereto agree as follows: 1. TERM This AGREEMENT shall commence on September 1, 2020, and shall remain in effect for one year unless terminated. The parties intend to review the Agreement in one year to make adjustments after that period. 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. 3. PERFORMANCE CONSULTANT shall, at all times, faithfully, competently, and with 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 obligation under this AGREEMENT. CONSULTANT shall warrant that all services provided and equipment installed shall perform in a customarily accepted professional standards manner and be fit for its particular purpose. 1 CONSULTANT's designated interface with the District is Michael Benesh, P.E. License No. 37893. All of CONSULTANT's personnel performing services under this Agreement will have the proper license for the work performed. 4. DISTRICT MANAGEMENT CONSULTANT shall represent the DISTRICT and report directly to the Board of Directors and shall also interact with the General Manager. Notwithstanding the foregoing, the District 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) DISTRICT agrees to pay CONSULTANT for providing engineering services at the hourly rates attached hereto in Exhibit A. (b) CONSULTANT will submit invoices upon task completion or monthly unless otherwise agreed. Invoices shall show date of service, service provided and time spent on each task, person performing the task and hourly rate. 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 for any reason, with or without cause, suspend or terminate this AGREEMENT, or any portion hereof, by serving upon the CONSULTANT written notice. Upon thirty (30) days of the 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 in accordance with the contract provisions. CONSULTANT shall immediately turn over all work-product to DISTRICT in a readily usable form. The Consultant cannot guarantee the authenticity, integrity or completeness of data files supplied in electronic format ("Electronic Files"). Upon termination of the AGREEMENT pursuant to this Section, the CONSULTANT will submit an invoice to the DISTRICT pursuant to Section 5. 2 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 Board of Directors determines that the CONSULTANT is in default in the performance of any of the terms or conditions of this AGREEMENT, the Board of Directors in its discretion shall 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 reasonable 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 Section 2 of this AGREEMENT 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 practices 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 3 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. CONSULTANT shall also make copies of original audit documentation available to DISTRICT unless it would jeopardize the audit. 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 bylaw, CONSULTANT shall indemni , , defend, and hold harmless indemnify„ DISTRICT and any and all of its officials, employees from and against any and all losses, liabilities, damages, costs, and expenses, including reasonable 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 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 reasonable 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 for which Consultant is legally liable. 10. INSURANCE CONSULTANT shall maintain prior to the beginning of and for the duration of this AGREEMENT insurance coverage as follows: (a) 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); (3) Workers' Compensation and Employers Liability. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance; and (4) Errors and Omissions: insurance covering professional services described in the this Agreement in the amount of at least One Million Dollars per claim. 4 (b) Minimum Limits of Insurance. Applicants shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (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; and (4) Errors and Omissions: $1,000,000 each claim. 12. INDEPENDENT CONSULTANT (a) CONSULTANT is and shall at all times remain as to the DISTRICT a wholly independent endent consultant. The personnel performing the services under this AGREEMENT on behalf of CONSULTANT shall at all times be under CONSULTANT's a 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. 13. LEGAL RESPONSIBILITIES The CONSULTANT shall keep itself informed of applicable 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 applicable 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. 14. 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, 5 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. 15. 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. 16. 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 DISTRICTs prior written authorization. The use and disclosure of the confidential information shall not apply to information which (a) was known to the CONSULTANT before receipt of same from the DISTRICT; or (b) becomes publicly known other than through the CONSULTANT; or (c) is disclosed pursuant to the requirements of a governmental authority or judicial order. 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, 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 provided that CONSULTANT shall be entitled to mention the project and the Services provided in future proposals as proof of CONSULTANT's experience with this type of work. 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, DISTRICTs 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 or indirectly, which 6 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 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. 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: The Costa Mesa Sanitary District 290 Paularino Avenue Costa Mesa, California 92626 Attn: District Clerk To CONSULTANT: Robin B. Hamers &Associates, Inc. 234 E. 17th Street, Suite 205 Cost Mesa, CA 92627 Attn: Michael Benesh 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 7 6 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 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. If requested in writing by either the DISTRICT or the CONSULTANT, the DISTRICT and the CONSULTANT shall attempt to resolve any dispute between them arising out of or in connection with this Agreement by first entering into structured non-binding negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled within a period of thirty (30) calendar days with the mediator, if mutually agreed, the dispute shall be referred to arbitration. 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. 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. IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed this day and year first above written. THE COSTA MESA SANITARY DISTRICT CONSULTANT General Manager Signature ATT ST: Michael Benesh 401.)II J A Name istri i' C"~rf President Title APPROVED AS TO FORM: 8/27/20 Date Ott^"14'd Harper & Burns LLP District Counsel 9 Exhibit A Civil engineering services provided by Robin B. Hamers & Associate, Inc. • Design CMSD capital improvement projects. • Prepare construction specifications and RFP documents • Contract administration for capital improvement projects • Assist with inflow analysis and smoke testing • Finalize the Sewer Master Plan • Work to resolve emerging issues of concern such as calcium in sewer mains and laterals • Review, inspect, and approve all sewer lateral construction in District from just outside the building on private property to the main line for all development within • CMSD service area • Field mark the location of all District owned pressure sewer mains, as required in response to Underground Service Alert notification • Other assignments and/ or tasks assigned by CMSD. Hourly Rate: $105.00