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HomeMy WebLinkAboutLaminar Energy Services Inc. 2011-12-19AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES [Design Professional] This Agreement, made and entered into this 19th day of December, 2011 ("Effective Date"), by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and Laminar Energy Services, Inc., a corporation organized and in good standing under the laws of the state of California, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. City requires consulting services related to Phase 2 Engineering Services at the Lake Mendocino Hydro Facility for the repair of the Penstock. b. Consultant represents that it has the qualifications, skills, experience and properly licensed to provide these services, and is willing to provide them according to the terms of this Agreement. City and Consultant agree upon the Scope-of-Work and Work Schedule attached hereto as Attachment "A", describing contract provisions for the project and setting forth the completion dates for the various services to be provided pursuant to this Agreement. TERMS OF AGREEMENT 1.0 DESCRIPTION OF PROJECT 1.1 The Project is described in detail in the attached Scope-of-Work (Attachment "A"). 2.0 SCOPE OF SERVICES 2.1 As set forth in Attachment "A". 2.2. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and Consultant. The written Agreement shall be in the form of an Amendment to this Agreement. 3.0 CONDUCT OF WORK 3.1 Time of Completion. Consultant shall commence performance of services as required by the Scope-of-Work upon receipt of a Notice to Proceed from City and shall complete such services in accordance with the project schedule, as approved by City. Consultant shall complete the work to the City's reasonable satisfaction, even if contract disputes arise or Consultant contends it is entitled to further compensation. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the professional services of this Agreement, Consultant shall be compensated on a time and expense basis not to exceed a guaranteed maximum dollar amount of $30,000.00. Labor charges shall be based upon hourly billing rates for the various classifications of personnel employed by Consultant to perform the Scope of Design - ProfSvcsAgreement-November 20, 2008 PAGE I OF 7 Work as set forth in the attached Attachment A, which shall include all indirect costs and expenses of every kind or nature, except direct expenses. The direct expenses and the fees to be charged for same shall be as set forth in Attachment A. Consultant shall complete the Scope of Work for the not-to-exceed guaranteed maximum, even if actual time and expenses exceed that amount. 4.2 Changes. Should changes in compensation be required because of changes to the Scope-of- Work of this Agreement, the parties shall agree in writing to any changes in compensation. "Changes to the Scope-of-Work" means different activities than those described in Attachment "A" and not additional time to complete those activities than the parties anticipated on the date they entered this Agreement. 4.3 Sub-contractor Payment. The use of sub-consultants or other services to perform a portion of the work of this Agreement shall be approved by City prior to commencement of work. The cost of sub-consultants shall be included within guaranteed not-to-exceed amount set forth in Section 4.1. 4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this contract shall be based upon submission of monthly invoices for the work satisfactorily performed prior to the date of invoice less any amount already paid to Consultant, which amounts shall be due and payable thirty (30) days after receipt by City. The invoices shall provide a description of each item of work performed, the time expended to perform each task, the fees charged for that task, and the direct expenses incurred and billed for. Invoices shall be accompanied by documentation sufficient to enable City to determine progress made and the expenses claimed. 5.0 ASSURANCES OF CONSULTANT 5.1 Independent Contractor. Consultant is an independent contractor and is solely responsible for its acts or omissions. Consultant (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. It is the express intention of the parties hereto that Consultant is an independent contractor and not an employee, joint venturer, or partner of City for any purpose whatsoever. City shall have no right to, and shall not control the manner or prescribe the method of accomplishing those services contracted to and performed by Consultant under this Agreement, and the general public and all governmental agencies regulating such activity shall be so informed. Those provisions of this Agreement that reserve ultimate authority in City have been inserted solely to achieve compliance with federal and state laws, rules, regulations, and interpretations thereof. No such provisions and no other provisions of this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Consultant and City. Consultant shall pay all estimated and actual federal and state income and self-employment taxes that are due the state and federal government and shall furnish and pay worker's compensation insurance, unemployment insurance and any other benefits required by law for himself and his employees, if any. Consultant agrees to indemnify and hold City and its officers, agents and employees harmless from and against any claims or demands by federal, state or local government agencies for any such taxes or benefits due but not paid by Consultant, including the legal costs associated with defending against any audit, claim, demand or law suit. Design - ProfSwc Ag,--.t-November 20, 2008 PAGE 2 OF 7 Consultant warrants and represents that it is a properly licensed professional or professional organization with a substantial investment in its business and that it maintains its own offices and staff which it will use in performing under this Agreement. 5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely to City. Consultant has no interest and will not acquire any direct or indirect interest that would conflict with its performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. If the City Manager determines that the Consultant has a disclosure obligation under the City's local conflict of interest code, the Consultant shall file the required disclosure form with the City Clerk within 10 days of being notified of the City Manager's determination. 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage - Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. 4. Errors and Omissions liability insurance appropriate to the consultant's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability. B. Minimum Limits of Insurance Consultant shall maintain limits no less than: General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. Design - ProfSvcsAgreement-November 20, 2008 PAGE 3 OF 7 Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. 4. Errors and Omissions liability: $1,000,000 per occurrence. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: General Liability and Automobile Liability Coverages a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Consultant, products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, hired or borrowed by the Consultant for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. b. The Consultant's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from Consultant's performance of the work, pursuant to this Agreement. Design - ProfSvcsAgreement-November 20, 2008 PAGE 4 OF 7 3. Professional Liability Coverage If written on a claims-made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend two years from effective date. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating. F. Verification of Coverage Consultant shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. All Certificates and Endorsements are to be received and approved by the City before Consultant begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If Consultant fails to provide the coverages required herein, the City shall have the right, but not the obligation, to purchase any or all of them. In that event, after notice to Consultant that City has paid the premium, the cost of insurance may be deducted from the compensation otherwise due the contractor under the terms of this Contract. G. Subcontractors Consultant shall include all sub-contractors or sub-consultants as insured under its policies or shall furnish separate certificates and endorsements for each sub-contractor or sub-consultant. All coverage for sub-contractors or sub-consultants shall be subject to all insurance requirements set forth in this Paragraph 6.1. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Consultant agrees, for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify the City for any claim, cost or liability that arises out of, or pertains to, or relates to any negligent act or omission or the willful misconduct of Consultant and its agents in the performance of services under this contract, but this indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by the City, or arising from the active negligence of the City. "Indemnify," as used herein includes the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all Design - ProfSvcsAgreement-November 20, 2008 PAGE 5 OF 7 costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, consultants, experts and °xe per . witnesses, and litigation expenses. References in this paragraph to City or Consultant, include their officers, employees, agents, and subcontractors. 7.0 CONTRACT PROVISIONS 7.1 Documents and Ownership of Work. All documents furnished to Consultant by City and all documents or reports and supportive data prepared by Consultant under this Agreement are owned and become the property of the City upon their creation and shall be given to City immediately upon demand and at the completion of Consultant's services at no additional cost to City. Deliverables are identified in the Scope-of-Work, Attachment "A". All documents produced by Consultant shall be furnished to City in digital format and hardcopy. Consultant shall produce the digital format, using software and media approved by City. 7.2 Governing Law. Consultant shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments set forth the entire understanding between the parties. 7.4 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 7.5 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 7.6 Assignment. Consultant's services are considered unique and personal. Consultant shall not assign, transfer, or sub-contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. 7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay Consultant for services provided under this Agreement; or 3) City has abandoned and does not wish to complete the project for which Consultant was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the breaching party fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Consultant. City shall pay the Consultant only for services performed and expenses incurred as of the effective termination date. In such event, as a condition to payment, Consultant shall provide to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Consultant under this Agreement. Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, Design- ProfSvcsAgreement-November 20, 2008 PAGE 6 OF 7 subject to off-set for any direct or consequential damages City may incur as a result of Consultants breach of contract. 7.9 Duplicate Originals. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. When so signed, each such document shall be admissible in administrative or judicial proceedings as proof of the terms of the Agreement between the parties. 8.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows: CITY OF UKIAH DEPT. OF ELECTRIC UTILITY 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482-5400 LAMINAR ENERGY SERVICES, INC. ATTN: TRACY WALLACE, PRESIDENT 1300 LOS OLIVOS ROAD SANTA ROSA, CA 95404 9.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement the Effective Date: LAMINAR ENERGY SERVICES, INC. BY: P R I N ~NAW55 d Date/ . IRS IDN Number CITY OF UKIAH BY: /j CITY MANAGER s~ .,d Date ATTEST 10 Y CLERK Date Design -ProtS-Agrm -t-November 20, 2008 PAGE 7 OF 7 ENERGY SERVICES, INC. 1300 Los Olivos Road Santa Rosa, CA 95404 Tel: (707) 695-0072 December d, 2011 Ms. Mary Horger Purchasing Supervisor City of Ukiah 411 West Clay Street Ukiah, CA 95482 ATTACHMENT "A" Page 1 of 5 Subject: Proposal for Evaluation and Inspection Services at Lake Mendocino Hydro FacilitX Due to Emergency Repairs of the Penstock Dear Ms. Horger: Thank you for your consideration of having Laminar Energy Services, Inc. (Laminar Energy) provide you with evaluation and inspection services at your Lake Mendocino Hydro Facility. We are available to provide expert technical and managerial consulting as an "Owner's Engineer" representing The City of Ukiah (City) to facilitate and manage the emergency repairs of the leaking penstock. It is our understanding that re-establishing the integrity of the hydro facility is resulting from a deadline of January 5, 2012 to account for the annual steelhead fish run water requirements. HISTORY Laminar Energy has been assisting the City in conducting preliminary leak investigations and the development of an initial construction specification for excavation under our company's job number L1110A-Ukiah and called Phase 1. As a result of these initial findings by the City, it is now important to continue to provide Owner's Engineering representation for the next step in correcting this issue; called Phase 2. COPE Phase 2 work includes the minimum expenditures necessary to make the hydro facility available for operation before January 5, 2012, and penstock rehabilitation scope determination work in anticipation of the Summer Outage for final repairs; i.e., Phase 3. The Phase 2 work proposed is: Proposal No. L1112A-Ulaah Phone: 888.705.0072 www.LaminarEnergycom FAX: 831.401.2772 CONFIDENTIAL • Page 2 December 6, 2011 ATTACHMENT "A" Page 2 of 5 1) Conduct research and provide a feasible method for the permanent repair of the leaking penstock. Deliverable is a repair method and estimated cost. 2) Write and deliver a construction specification for a scope of work to be utilized for a mechanical. contractor to conduct work inside the penstock. The majority of this specification will utilize the existing specification previously written for excavation work. 3) Provide onsite construction inspection services for the mechanical contractor for physical work inside the penstock. 4) Conduct and provide an inspection report of the internal penstock areas requiring future repairs. This future work will be the basis for the Summer. Outage for final repairs; Phase 3 to be completed as a separate proposal. 5) Assess the potential of the penstock leak undermining resulting in the plant foundation movement. a. If necessary, coordinate a Civil Engineer's evaluative approval. This coordination includes: i. Delivering a bid specification for contracting a Civil Engineer ii. Site review with the engineer of documents, videos, and personnel interviews. iii. If necessary, provide inspection oversight of civil engineering related physical site work to assess the degree of undermining (e.g., obtaining core samples, bore scope examinations, etc.) SCHEDULE The work will start as soon as a Purchase Order or other authorization is received authorizing this Work Scope. Site access will be coordinated with customer due to the nature of the work location and associated restrictions. PRICING AND TERMS OF PAYMENT 1. The above discussed scope of work plus expenses is estimated at a total price of $28,850 (twenty eight-thousand eight-hundred fifty CIS dollars). The work will be performed on a time-and-materials "not-to-exceed" basis at a straight-time billing rate as defined in the attached Exhibit B of $180 per hour (plus any expenses per attached Exhibit C). Any required materials are cost plus 10%. 2. Payment terms are Net 30 days from date of receipt of correct invoice. Laminar Energy is responsible to assure all documentation is correct and complete when submitted. Late fees of 1-1/2% per month may be assessed for payment received 30 days after invoicing. 3. This offer is extended for 60 days after the date of this proposal. Proposal No. L1112A-Ukiah www.LaminarEnergy.com FAX: 831.401.2772 Phone: 888.705.0072 CONFIDENTIAL 0 Page 3 December 6, 2011 ATTACHMENT "A" Page 3 of 5 4. Laminar Energy Services, Inc. warrants and guarantees that it will perform its services in accordance with the standards of care, thoroughness, competence normally practiced by recognized firms in the industry in performing services of a similar nature at the time of performance of the services. Please contact me at 707-695-0072 or Paul Dirks at 831-588-6027 for any questions you may have regarding this proposal. Best Regards, TRACY WALLACE President Attachments cc: Jim Bauer Mel Grandi PBDirks Proposal No. L1112A-Ukiah www.LaminarEnerU.com PAX: 831.401.2772 Phone: 888.705.0072 CONFIDENTIAL ATTACHMENT "A" EXHIBIT B, COMPENSTATION Page 4 of 5 Labor Charges Except as noted below, the Invoice Rate for the time personnel are directly engaged in the performance of the Services and located at Laminar Energy Services Inc. (Laminar Energy) offices, at Customer designated facilities, or en route between facilities shall be equal to the appropriate straight-time, overtime, and/or emergency call-out hourly billing rates as defined by Laminar Energy Services, Inc. Labor costs for all chargeable travel shall be calculated on the basis of straight time or emergency call-out time, as applicable. Unless otherwise agreed to in writing, Laminar Energy must receive prior authorization from Customer before incurring overtime pay costs in performance of Services for Customer. The defined rates for Laminar Energy's personnel categories listed below are subject to change upon written notification to the Customer and will be updated every year on January 1st: Category Straight Level Employee Category Time Rate 1 Principal Engineer $180.00/hr The above rates include all direct and indirect costs except reimbursable expenses. Indirect costs include such items as overhead, profit, and such statutory and customary fringe benefits as social security contributions, sick leave, unemployment, excise and payroll taxes, worker's compensation, health and retirement benefits, bonuses, annual leave, and holiday pay. Laminar Energy recognizes nine holidays per year: New Year's Day, Presidents' Day, Memorial Day, independence Day, Labor Day, Veteran's Day, Thanksgiving Day, day after Thanksgiving Day, and Christmas Day. Emergency call-out shall be billed at a 4-hour minimum and at the overtime rate. Overtime is billed as defined by the California Labor Code. In summary, an overtime rate of one and one-half times the straight time labor rate will apply to hours worked in excess of eight hours per day, 40 hours per week, and the first eight hours of the seventh consecutive day worked. Hours worked in excess of 12 hours per day and past eight hours on the seventh consecutive day worked will be billed at twice the straight-time rate. Notwithstanding the above, there will be no labor costs charged to Customer for the following activities performed by Laminar Energy: 1) Invoice preparation, revisions, or processing. 2) Preparation of Request for Services Laminar Energy Services, Inc. Exhibit B - Compensation 2011 ATTACHMENT "A" EXHIBIT C, COSTS AND EXPENSES Page 5 of 5 f 1. Materials and Subcontracted Services: Any required materials and/or Subcontractor services will be billed at cost plus 10%. 2. Reimbursable Personal Expenses: When applicable, reimbursement of personal expenses will be billed at cost with no markup. The following are examples of typical personal expenses: a) Food and meals while on out-of-town travel status. b) Car rental. c) Employee-owned car, reimbursed at IRS allowable rate. d) Lodging including hotels, RV camping daily rates, etc. e) Hired ground transportation, including taxis. f) Airfares for air travel and/or employee-owned airplane reimbursed at IRS allowable rate. g) Reasonable and customary miscellaneous personal and incidental expenses incurred while traveling. Laminar Energy Services, Inc. Exhibit C - Costs and Expenses 2011