Contract - Environmental Engineering & Contracting - 2003-08-11 AGREEMENT FOR CONSULTANT SERVICES
FOG Characterization Study
•
THIS AGREEMENT is made and effective as of August 11 2003, between
the Costa Mesa Sanitary District, a district established under the Sanitary District
Act of 1923 ("District") and Environmental Engineering and Contracting, Inc. a
California 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 August 11 2003 and shall remain and
continue in effect until tasks described herein are completed, but in no event later
than February 11 2005 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
• 3. PERFORMANCE
Consultant shall at all times faithfully competently and to the best of his
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
The Manager/District Engineer shall represent District in all matters
pertaining to the administration of this Agreement, including 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
Manager/District Engineer 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 on a percentage completed basis
for the FOG Characterization study and monthly on a time and material basis for
sewer line televising in accordance with the payment terms set forth in Exhibit
A attached hereto and incorporated herein by this reference as though set
forth in full. This amount shall not exceed one hundred fifty thousand dollars
($150,000 ) for the total term of the Agreement unless additional payment is
approved as provided in this Agreement.
• (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 Manager Consultant shall be compensated for any
additional services in the amounts and in the manner as agreed to by District
Manager and Consultant at the time District's written authorization is given to
Consultant for the performance of said services The District Manager may
approve additional work not to exceed the greater of fifteen-thousand dollars
($15 000 00) or two percent (2%) of the total contract sum. Any additional work in
excess of this amount shall be approved by the Board of Directors
(c) Consultant shall submit invoices for services performed as shown in
Exhibit A on or before the 25th day of each month for services performed to that
date 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 (30) 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 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.
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 or 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
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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 FOG Characterization Study and other such information required by
District that relate to the performance of services under this Agreement.
Consultant shall maintain adequate accounting 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 FOG
Characterization records data, and other documents prepared in the course of
providing the services 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
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liability for claims, suits actions arbitration proceedings administrative
proceedings regulatory proceedings loses expenses or costs of any kind,
whether actual, alleged or threatened, including attorneys 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, agents,
employees or subconsultants of Consultant.
(c) General Indemnification Provisions Consultant agrees to obtain
executed indemnity agreements with provisions identical to those set forth here
in this section from each and every subconsultant or any other person or entity
involved by for with or on behalf of Consultant in the performance of this
Agreement. In the event Consultant fails to obtain such indemnity obligations
from others as required here, Consultant agrees to be fully responsible according
to the terms of this section. Failure of District to monitor compliance with these
requirements imposes no additional obligations on District and will in no way act
as a waiver of any rights hereunder This obligation to indemnify and defend
District as set forth herein is binding on the successors assigns or heirs of
Consultant and shall survive the termination of this Agreement or this section.
10. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of
this Agreement insurance coverage as follows Workers Compensation
Insurance General Liability Insurance in the amount of $2 million per occurrence
• Professional Liability Insurance in the amount of $1 million per occurrence with a
$2 million yearly aggregate, and Automobile Liability Insurance in the amount of
$1 million per occurrence Consultant shall provide District with a certificate of
insurance
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 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
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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 is
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 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 District
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
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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
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 either 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 by 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
77 Fair Drive
Post Office Box 1200
Costa Mesa, California 92628-1200
Attn District Clerk
To Consultant.
• Environmental Engineering and Contracting, Inc.
501 Parkcenter Drive
Santa Ana, CA 92705
Attn John Shaffer
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. Consultant shall provide District fourteen (14) day's notice prior to
the departure of John Shaffer from Consultant's employ Should he 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.
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• 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 WORK SCHEDULE
Consultant agrees to begin work immediately upon signature of this
• Agreement by both District and Consultant and to diligently pursue completion of
the Phases as described in Exhibit A in order to complete the entire scope of
work within 18 months.
22. CONTENTS OF PROPOSAL
Consultant is bound by the contents of Consultant's Proposal. Changes to
the scope of work shall be as agreed to in writing by District and Consultant.
23. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant
warrants and represents that he 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.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed the day and year first above written.
• COSTA MESA SANITARY DISTRICT CONSULTANT
Arlene Schafer President John haffer President
Jam s Ferryma Secretary
v
ATTEST L
Dis#ct Clerk
APPROVED AS TO FORM:
• District Counsel
a