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HomeMy WebLinkAboutKWA Safety and HazMat Consultants, Inc. 2005-11-10crck eti(9 '9 -1� CITY OF UKIAH STANDARD CONSULTANT SERVICES AGREEMENT AND GENERAL PROVISIONS This Agreement, made and entered into this day of November, 2005, by and between the CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and KWA Safety and HazMat Consultants, Inc., a California Corporation, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. City requires occupational safety and health consulting services related to the Water and Wastewater Treatment Plants. b. Consultant represents and warrants to City that she has all licenses, permits, qualifications, and approvals of whatsoever nature, which are legally required for Consultant to practice her profession. Consultant represents and warrants to City that Consultant shall, at her sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice her profession. The consultant must possess a valid City of Ukiah Business License prior to beginning work. C. City and Consultant agree upon the SCOPE OF SERVICES describing work to be performed by the Consultant and project deliverables to be delivered to the City and the Work Schedule 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 services to be rendered under this Agreement pertain to occupational safety and health consulting services for the Water and Wastewater Treatment Plants. 2.0 SCOPE OF SERVICES 2.1 As set forth in the attachment "Scope of Services", dated October 18, 2005. 3.0 CONDUCT OF WORK 3.1 Time of Completion. Consultant shall commence performance of services as required by the "SCOPE OF SERVICES" upon receipt of a Notice to Proceed from City and shall complete such services in accordance with the time requirements set forth in the "SCOPE OF SERVICES". Consultant shall complete the work to the City's reasonable satisfaction, even if 1 contract disputes arise or Consultant contends it is entitled to further compensation. Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. In the case of any such delay, the time of completion shall be extended accordingly. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the professional and technical services of this Agreement, Consultant shall be compensated at the fixed not to exceed fee of $20,000, which includes all labor, profit, expenses and other costs associated with performing the work set forth in Scope of Services. The Consultant is obligated to complete all tasks in their entirety for this compensation. 4.2 Changes. Should changes in compensation be required because of changes to the "SCOPE OF SERVICES" of this Agreement, the parties shall agree in writing to any changes in compensation. Changes to the "SCOPE OF SERVICES" means different activities than those described and not additional time to complete those activities than the parties anticipate on the date they entered this Agreement. 4.3 Sub -contractor Payment. City shall approve the use of sub -consultants or other services to perform a portion of the work of this Agreement prior to commencement of work; the cost of subconsultants is included within the fixed fee identified 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 percentage of the work satisfactorily performed prior to the date of invoice less any amount already paid to Consultant, which amounts shall be due and payable within thirty (30) days of receipt by City. Invoices shall be accompanied by documentation sufficient to enable City to determine progress made. 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. City shall have the right to control Consultant only insofar as the results of Consultant's service rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. 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 bylaw for itself and its 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. 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 withits performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. 5.3 Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. City shall designate a City representative and Consultant shall designate a Consultant representative. The City representative and the Consultant representative shall be the primary contact person for each party regarding the performance of the agreement. City representative shall cooperate with Consultant and consultant representative shall cooperate with the City in all matters regarding this agreement and in such manner as will result in the performance of the work in a timely and expeditious fashion. Consultant shall employ no City official or employee in the work performed pursuant to this Agreement. No office or employee of Agency shall have any financial interest in this Agreement in violation of California Government Code Sections 1090 and following; nor shall City violate any provisions of its Conflict of Interest Code adopted pursuant to the provisions of California Government Code Section 87300 and following. 5.4. Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices his profession. All instruments of service of whatsoever nature which consultant delivers to City pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in Consultant's profession. 5.5 Unique, Proprietary or Innovative Designs or Products. Unique, proprietary or innovative designs or products must be approved of by City in advance of specification or use in design by Consultant. A full, written report on performance history (i.e., track record) of product, design strengths and weaknesses or limitations, and financial strength of manufacturer making product must be submitted by Consultant to City for review and approval. 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall maintain for the duration of this Agreement insurance as evidenced by the insurance certificates attached as Exhibit A. Consultant is a California Corporation and does not have any employees. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Consultant shall indemnify, defend and hold harmless City officers, agents and employees from andagainst any and all claims, demands, liability, costs and expenses, including court costs and counselfees, arising out of the injury to or death of any person or loss of or physical damage to any property resulting from any negligent or willfully wrongful act or omission committed by Consultant or it'sofficers, agents or employees while performing services under this Agreement. Consultant's liability for professional negligence shall be limited to $1,000,000. 3 As to events, which occur during Consultant's performance of this Agreement, City shall hold Consultant harmless from and defend Consultant against all claims, liability, damage, or loss arising out of any injury or death of any person or damage to or destruction of property attributable to the negligent or willfully wrongful act or omission of City or its officers and employees, where the injury, death or damage is caused by the sole and active negligence or willful misconduct of City or City's employees. City shall be solely responsible for, and shall indemnify and hold harmless Consultant, its sub consultants, and their directors, officers, employees, agents, successors and assigns from and againstany and all demands, claims, suits, liabilities, losses, damages, fines, encumbrances, liens, penalties or expenses ("Claims") for bodily injury, property damage, damages to the environment or natural resources, lost use, income, or profits, foreseeable and unforeseeable consequential damages, the costs of any required or necessary repair, cleanup or detoxification of any property, the preparation and implementation of any closure, remedial or other required plans, and all reasonable costs and expenses incurred by Consultant in connection with the above, including, without limitation, reasonable attorneys' fees: (1) arising out of the services performed under this Agreement; and (2) involving the transportation, treatment, storage, release, or threatened release of Hazardous Material, or any Claim made under any Hazardous Materials Laws. This indemnification shall not apply to claims based on the negligent or willfully wrongful act or omission of Consultant, or its officers, agents, employees, successors or assigns; however, City agrees that it will retain an attorney acceptable to Consultant and pay all legal fees to defend Consultant against any legal action in connection with hazardous material as defined herein. As used herein, the term "Hazardous Material" means any pollutant, contaminant, hazardous waste, toxic substance or related material, including, without limitation, any substance regulated under the Hazardous Materials Laws. As used herein, the term "Hazardous Materials Laws" includes any statute, regulation, order, permit or government requirement, now or hereafter in effect, relating to environmental conditions, industrial hygiene, or Hazardous Materials, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980. 7.0 CONTRACT PROVISIONS 7.1 Ownership of Work. All documents furnished to Consultant by City and all reports and supportive data prepared by Consultant under this Agreement are City's property and shall be given to City during or upon the completion of Consultant's services at no additional cost to City. Deliverables are identified in the "SCOPE OF SERVICES". Documents, including drawings and specifications, prepared by Consultant under this Agreement are City's property, including ownership of any copyrights on project plans, drawings, specifications, and reports. Any use of completed documents for other projects and/or any use of uncompleted documents without specific written authorization from Consultant will be at City's sole risk and without liability or legal exposure to Consultant and City shall indemnify and hold Consultant harmless from all claims, damages, and losses and expenses, including attorney's fees, arising out of or resulting there from. 4 7.2 Final Approval. City and Consultant agree that until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without the prior written consent of both parties. 7.3 Governing Law. Consultant shall comply with the applicable laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. California law shall govern the interpretation and enforcement of this Agreement and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.4 Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from governmental entity, Consultant shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.5 Breach of Contract. If Consultant materially breaches the terms of this Agreement, the City shall have the following alternative remedies: (a) Immediately terminate the Agreement with Consultant; (b) Retain the plans, specifications, drawings, reports and other design documents prepared by Consultant; (c) Copyrights on plans, specifications, drawings, and reports and other design documents owned by the Consultant shall become the property of City; (d) Complete the unfinished work, under this agreement, with a different consultant; (e) Charge Consultant with the difference between the cost of completion of the unfinished work pursuant to this agreement and the amount that would otherwise be due consultant had Consultant completed the work; (f) Any other remedy available at law or in equity. 7.6 Entire Agreement. This Agreement and executed Amendments set forth the entire understanding between the parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties. 7.7 Severability. If a court of competent jurisdiction holds any term of this Agreement invalid, the remainder of this Agreement shall remain in effect. 7.8 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 7.9 Assi ninent. 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. 7.10 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. E 7.11 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; 3) City has abandoned and does not wish to complete the project for which Consultant was retained; or (4) on fifteen (15) days prior written notice. 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 non -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 upfinished 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, subject to off -set for any direct or consequential damages City may incur as a result of Consultant's breach of contract. 7.12 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. M 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 DEPARTMENT OF PUBLIC UTILITIES 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482 KWA SAFETY & HAZMAT CONSULTANTS, INC. P.O. BOX 5573 EL DORADO HILLS, CALIFORNIA 95762 Consultant Entitled to Rely. Consultant shall be entitled to rely upon the accuracy of data and information provided by City or others without independent review or evaluation. 6 10.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written: CITY OF UKIAH KWA SAFETY & HAZMAT CONSULTANTS, INC. BY: BY: CANDACE HORSLEY PAMELA MURCELL, CIH CITY MANAGER OWNER ATTEST MARIE ULVILA CITY CLERK APPROV AS TO FO DAV RAPPO T CITY ATTORNEY 7 �/Z,16,5- Date Date SCOPE OF SERVICES Employee Occupational Safety and Health Consulting Services For the City of Ukiah Water and Wastewater Treatment Plants October 18, 2005 KWA SAFETY & HAZMAT CONSULTANTS, INC. (KWA) will provide the necessary personnel, materials, and equipment to perform the services described in the following tasks. Fieldwork will be performed at the City of Ukiah facilities located in Ukiah, California. Tasks that will be included to accomplish revisions to the City's safety program are: ♦ Attend a kickoff meeting/discussion with key project contacts to establish document priorities, deliverables and schedule, and gather copies of current safety program documents (hard copy and electronic as available). ♦ Conduct a noise survey at the water treatment plant and a noise survey at the wastewater treatment plant. Each survey includes a representative number of employees (i.e., three) each of whom will wear a noise dosimeter during one shift, and use of a sound level meter to directly monitor noise levels associated with specific equipment and/or processes. The results of the surveys will be used to determine the level of compliance with the Cal/OSHA regulations on Control of Noise. ♦ Review the written safety program documents and records. ♦ Interview key employees to determine safety procedures that are implemented. ♦ Compare findings to current Cal/OSHA requirements and Cal/OSHA inspection concerns. ♦ Prepare draft documents for review and comment by City staff. ♦ After receiving comments, prepare final documents and provide two hard copies and one copy via electronic media. CITY OF UKIAH will provide: 1. Access to its facilities and personnel. 2. Coordination with on-site representatives. 3. Operations and facility information as needed for inclusion in the revised safety program procedures. 4. Hard copies and electronic versions of safety program information, procedures, and templates. ACORD, CERTIFICATE OF LIABILITY INSURANCE DATE(MMI°Dm5 10/27/2005 PRODUCER Frenkel & Co. CA Environmental Risk Servics THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 725 South Figueroa Street, Suite #2200 DD' Los Angeles CA 90017 INSURERS AFFORDING COVERAGE- NAIC# INSURED - - INSURERA:American 'Safety Casualty Insu 39969 KWA Safety & Haz Mat Consultants, Inc. INSURER B: P.O. BOX 5573 E1 Dorado Hills CA 95762 INSURERC: INSURER D: INSURER E: 11/13/2006 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR T DD' Attn: Ann Burck POLICY NUMBER POLICY EFFECTIVE T POLICY EXPIRATIONTYPEOF LIMITS A AUTHORIZED REPRESENTATIVE GENERAL LIABILITY IPCL XDAMAGEAR COMMERCIAL GENERAL LIABILITY 04-2028-003. 11/13/2004 11/13/2006 EACHOCCURRENCE $ 1, 000, 000 TO—REN—TED — 50,000 PREMISES Ea occurence $ MED EXP (Any one person) $ 5,000 - CLAIMS MADE O OCCUR PERSONAL&ADV INJURY $ 1,000,000 X Contr. Pol.Liab. GENERALAGGREGATE $ 2,000,000 GEML AGGREGATE LIMITAPPLIES PER: PRODUCTS-COMP/OPAGG $ 2,000,000 - POLICY -PRO- Ll LOC EC A AUTOMOBILE LIABILITY. ANYAUTO PCL 04--20.28-003 _ - 11/13/2004 11/13/2006 . COMBINED SINGLE LIMIT $1,000,000 (Ea accident) BODILYINJURY $ - (Per person) ALLOWNEDAUTOS. SCHEDULEDAUTOS : -. _ - BODILYINJURY $ (Per accident) _ - X X 'HIREDAUTOS _ NON-OWNEDAUTOS. - PROPERTYDAMAGE $ (Per accident) - - - GARAGE LIABILITY AUTO ONLY -EAACCIDENT $ OTHERTHAN EAACC $ - ANYAUTO - - AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY _ EACH OCCURRENCE $ AGGREGATE $ OCCUR F� CLAIMS MADE $ DEDUCTIBLE $ RETENTION -. -$ - WORKERS COMPENSATION AND WC STATU- OTH- TORY L M1 TS ER E.L. EACH ACCIDENT $ EMPLOYERS' LIABILITY ANYPROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED? - E.L. DISEASE -EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ If yes; describe under SPECIAL PROVISIONS below - A OTHER Claims Made PCL 04-2028-003 11/13/2004 11/13/2006 Each Claim $1,000,000 Gen. Aggregate $2,000,000 Professional Liability DESCRIPTION OF OPERATIONS/ LOCATIONS /VEHICLES/ EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS City of Ukiah, its officials, officers, employees and volunteers are added as Additional Insured to the General Liability but only as respects all covered operations of the Named Insured. Re: Safety Program Consulting. CERTIFIGA I t MUL.urrc - ---- - SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER City of Ukiah WILL XXXXXXXCXMAIL 30 DAYS WRITTEN NOTICE TO THE Attn: Ann Burck CERTIFICATE HOLDER NAMED TO THE LEFT, EXCEPT 10 DAYS FOR 411 W. Clay Street NON-PAYMENT OF PREMIUM, }iX7Xl${A01{,g{�XIXE� Ukiah CA 95482-5400XX`QX' AUTHORIZED REPRESENTATIVE n ACORn CORPORATION 1988 ACORD 25 (2001108) IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the 'policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in.lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108)