HomeMy WebLinkAboutContracts & Agreements_131a-2009_CCv0001.pdf AGREEMENT TO FURNISH PROFESSIONAL SERVICES
This agreement for consulting services("Agreement")is made and entered into this 20th day
of August, 2009("Effective Date"),by and between the City of Redlands, a municipal corporation
("City")and ENVIRON International Corporation,a Virginia corporation("Consultant"). City and
Consultant are sometimes individually referred to herein as a"Party"and,together,as the"Parties."
In consideration of the mutual promises contained herein, City and Consultant agree as
follows:
ARTICLE 1- ENGAGEMENT OF CONSULTANT
1.1 City hereby engages Consultant to perform professional consulting services in connection
with South Coast Air Quality Management District's enforcement efforts relating to City's
cogeneration facility(the"Services").
1.2 The Services shall be performed by Consultant in a professional manner, and Consultant
represents that it has the skill and the professional expertise necessary to provide the Services
to City at a level of competency presently maintained by other practicing professional
consultants in the industry providing like and similar types of Services.This standard of care
shall be judged as of the time the Services are rendered,and not according to later standards.
Consultant makes no other warranty or representation, either express or implied, with
respect to its performance of the Services. Estimates of cost,recommendations and opinions
by Consultant are made on the basis of its experience and professional judgment;they are not
guarantees.
ARTICLE 2 - SERVICES OF CONSULTANT
2.1 The Services which Consultant shall perform are more particularly described in,Consultant's
proposal to City which is attached hereto as Exhibit "A," and incorporated herein by this
reference.
2.2 Consultant shall comply with all applicable Federal, State and local laws and regulations in
the performance of this Agreement including, but not limited to, the Americans with
Disabilities Act and the Fair Employment and Housing Act.
ARTICLE.-3 - RESPONSIBILITIES OF CITY
3.1 City shall make available to Consultant information in its possession that reasonably may
assist Consultant in performing the Services.
3.2 City will make reasonable provision for Consultant to enter upon City-owned property to
perform the Services.
3.3 City designates its Municipal Utilities and Engineering Director,Rosemary Hoerning,or the
Director's authorized designee, as City's representative with respect to performance of the
Services, and such person shall have the authority to transmit instructions, receive
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information,interpret and define City's policies and decisions with respect to performance of
the Services.
ARTICLE 4 - PAYMENT AND NOTICE
4.1 A. The total compensation for Consultant's performance of the Services shall not exceed the
amount of Nine Thousand Five Hundred Dollars($9,500.00). City shall pay Consultant on a
time and materials basis up to the not to exceed amount based upon the hourly rates shown in
the"Rate Schedule"which is attached hereto as Exhibit"B,"and incorporated herein by this
reference.
B. Expenses incurred by Consultant including travel, priority mail, overnight delivery,
outside reproduction and courier services will be billed to City at cost, plus fifteen percent
(15%). The use of company-owned cars, trucks, and vans will be charged at One Hundred
Twenty-Five Dollars ($125.00) per day. The use of company-owned equipment and
protective clothing will be billed in accordance with the fee schedule described in Exhibit
"B." The cost of communications, including in-house telephone, facsimile, postage, and
reproduction, computers, data compilation, and CARD will be charged at a total of six
percent (6%)of the total labor charges for the Services.
4.2 Payments by City to Consultant shall be made within thirty(30) days after receipt and
approval by City of Consultant's invoice,by check payable to Consultant. Invoices shall
be sent on a monthly basis. Consultant may cease its provision of Services under this
Agreement if invoices sent to City remain unpaid for more than sixty(60) days past their
respective dates.
4.3 All notices shall be given in writing by personal delivery or by mail. Notices, sent by
mail should be addressed as follows:
City: Rosemary Hoerning
Director of Municipal Utilities & Engineering
City of Redlands
PO Box 3005
Redlands, CA 92373
Consultant: Joseph W. Hower
Managing Principal
ENVIRON International Corporation
707 Wilshire Blvd., Suite 4950
Los Angeles, CA 90017
When so addressed, such notices shall be deemed given upon deposit in the United States Mail.
Changes may be made in the names and addresses of the person to whom notices are to be given
by giving notice pursuant to this section.
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ARTICLE 5 - INSURANCE AND INDEMNIFICATION
5.1 All insurance required by this Agreement shall be maintained by Consultant for the duration
of its performance of the Services. Consultant shall not perform any Services unless and
until all required insurance listed below is obtained by Consultant. Consultant shall provide
City with certificates of insurance and endorsements evidencing such insurance upon
execution of this Agreement. All insurance policies shall include a provision prohibiting
cancellation of the policy, except upon thirty (30) days' prior written notice to City.
Consultant agrees to provide 30 days notice prior to a material change in the coverage.
5.2 Consultant shall secure and maintain Workers' Compensation and Employer's Liability
insurance throughout the duration of this Agreement in an amount which meets the statutory
requirement, and with an insurance carrier acceptable to City.
5.3 Consultant shall indemnify, hold harmless and defend City and its elected officials, and
employees and agents from and against any and all claims, losses or liability, including
attorneys' fees,arising from injury or death to persons or damage to property occasioned by
any negligent act,omission or failure to act by Consultant,its officers,employees and agents
in performing the Services.
5.4 Consultant shall secure and maintain in force throughout the duration of the Agreement
comprehensive general liability insurance with carriers acceptable to City. Minimum
coverage of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars
($2,000,000)aggregate for public liability,property damage and personal injury is required.
City shall be named as an additional insured and the insurance policy shall include a
provision prohibiting modification of coverage limits or cancellation of the policy except
upon thirty(30)days prior written notice to City. Such insurance shall be primary and non-
contributing to any insurance or self-insurance maintained by City. Certificates of insurance
and endorsements shall be delivered to City prior to commencement of the Services.
5.5 Consultant shall secure and maintain professional liability insurance throughout the duration
of this Agreement in the amount of One Million Dollars ($1,000,000) per claim made.
Certificates of insurance and endorsements shall be delivered to City prior to commencement
of the Services.
5.6 Consultant shall maintain business auto liability coverage, with minimum limits of One
Million Dollars($1,000,000)per occurrence,combined single limit for bodily injury liability
and property damage liability. This coverage shall include all Consultant owned vehicles
used on the project,hired and non-owned vehicles, and employee non-ownership vehicles.
Such insurance shall be primary and non-contributing to any insurance or self insurance
maintained by City. City shall be named as an additional insured and a certificate of
insurance and endorsement shall be delivered to City prior to commencement of the Services.
5.7 Limitation of Liability: Consultant shall be liable only for direct damages that result from
Consultant's negligence or willful misconduct in the performance of its services. UNDER
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NO CIRCUMSTANCES SHALL Consultant BE LIABLE FOR INDIRECT,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR FOR DAMAGES
CAUSED BY THE CLIENT'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER
LAW OR CONTRACT. Consultant shall not be liable for and City shall indemnify
Consultant from and against all claims,demands, liabilities and costs (including attorneys'
and expert fees)resulting from on-site activities except to the extent caused by Consultant's
negligence or willful misconduct. In no event shall our liability exceed the one million
dollars ($1,000,000) and City specifically releases Consultant for any damages, claims,
liabilities and costs in excess of that amount.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.1 In the event any action is commenced to enforce or interpret any of the terms or conditions of
this Agreement the prevailing Party shall,in addition to any costs and other relief,be entitled
to the recovery of its reasonable attorneys'fees,including fees for use of in-house counsel by
a Party.
6.2 Consultant shall not assign any of the Services to be performed under this Agreement,except
with the prior written approval of City and in strict compliance with the terms, provisions
and conditions of this Agreement.
6.3 All documents, records, drawings, designs, cost estimates, electronic data files, databases,
and other documents developed by Consultant pursuant to this Agreement,and any copyright
interest in such documents,shall become the property of City and shall be delivered to City
upon completion of the Services,or upon the request of City. Any reuse of such documents
and any use of incomplete documents will be at City's sole risk. Consultant may retain one
copy of any documents that it developed or relied upon for archival purposes.
6.4 Consultant is for all purposes an independent contractor. Consultant shall supply all tools
and instrumentalities required to perform the Services. All personnel employed by
Consultant are for its account only, and in no event shall Consultant or any personnel
retained by it be deemed to have been employed by City or engaged by City for the account
of. or on behalf of City.
6.5 Unless earlier terminated, as provided for below, this Agreement shall terminate upon
completion and acceptance of the Services by City.
6.6 This Agreement may be terminated by either Party,in its sole discretion and without cause,
by providing ten(10)business days'prior written notice to Consultant(delivered by certified
mail, return receipt requested) of intent to terminate. The Parties' respective obligations
under Section 1.2, 4.1 and 5.3, hereof, and Sections 2, 4, 5 and 6 of Exhibit "A," shall
survive any termination of this Agreement.
6.7 If this Agreement is terminated by City,an adjustment to Consultant's compensation shall be
made,but(I)no amount shall be allowed for anticipated profit or unperformed services,and
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(2)any payment due Consultant at the time of termination may be adjusted to the extent of
any additional costs to City occasioned by any default by Consultant.
6.8 Upon receipt of a termination notice, Consultant shall immediately discontinue all services
affected, and within five(5)days of the date of the termination notice,deliver or otherwise
make available to City, copies(in both hard copy and electronic form,where applicable)of
any data, design calculations, drawings, specifications, reports, estimates, summaries and
such other information and materials as may have been accumulated by Consultant in
performing the Services required by this Agreement. Consultant shall be compensated on a
pro-rata basis for work completed up until notice of termination.
6.9 Consultant shall maintain books and accounts of all payroll costs and expenses related to the
Services. Such books shall be available at all reasonable times for examination by City at the
office of Consultant.
6.10 This Agreement, including the Exhibits incorporated herein by reference, represents the
entire agreement and understanding between the Parties as to the matters contained herein,
and any prior negotiations, written proposals or verbal agreements relating to such matters
are superseded by this Agreement. Any amendment to this Agreement shall be in writing,
approved by City and signed by City and Consultant.
6.11 This Agreement shall be governed by and construed in accordance with the laws of the State
of California.
IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have
signed in confirmation of this Agreement.
CITY OF REDLANDS ENVIRON INTERNATIONAL
CORPORATION
By- By:
�4.lknri#e Waitinez, �d-�Ym ager seph W. Hower, Managing Principal
Attest:
City Clerk
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E N V I R 0 N Exhibit"A"
August 10, 2009
PROPOSAL
ENVIRON International Corporation (ENVIRON) is pleased to submit this Proposal to provide
consulting services to the City of Redlands(Redlands), This Proposal was prepared in response to
your request for ENVIRON to provide assistance with respect to various South Coast Air Quality
Management District(SCAQMD or District)enforcement matters at Redlands's cogeneration facility.
From E mail and phone communications with you, ENVIRON understands that you are requesting
ENVIRON's assistance particularly with respect to fashioning an appropriate response to ongoing
SCAQMD enforcement actions, as well as with respect to the pending Regular Variance Hearing,
currently scheduled for September 1, 2009. Redlands attempted to obtain an Interim Variance from
the SCAQMD's Hearing Board in July of 2009, but withdrew the petition after discussion with the
SCAQMD Staff. This letter outlines our proposed Scope of Work(SOW)and the rate schedule that
will apply to the tasks ENVIRON will perform in this matter.
Scope of Work
You have requested ENVIRON's assistance with respect to fashioning an appropriate response to
the SCAQMD's enforcement activities and various issues that are, may be, or may become
intertwined with such response. These include, but are not limited to, various issues involving the
cogeneration system and the Volatile Organic Compounds (VOC) emitted by it. Tasks will include
evaluation of the last three years of source test reports, the SCAQMD's permit processing report,
and related documents. We will also prepare for and testify at the Hearing Board hearing for a
Variance and/or Stipulated Abatement Order.
ENVIRON will perform the work as broadly scoped above on a time-and-materials basis in
accordance with the attached Terms and Conditions and the current ENVIRON sate schedule. As
we get further into the work, ENVIRON can provide a more detailed SOW and a corresponding cost
estimate.
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GENERAL TERMS AND CONDITIONS
ENVIRON International Corporation, a Virginia corporation, ("ENVIRON") agrees to provide
professional services under the following General Terms and Conditions:
1. Fees: ENVIRON bills for its services on a time and materials basis using standard hourly
rates. If requested, we will provide an estimate of the fees for a particular task, and we will not
exceed that estimate without prior Client approval. For deposition and testimony we charge
premium hourly rates. In certain circumstances we will undertake an assignment on a fixed fee
basis if the requirements can be clearly defined.
2. Subcontractors: ENVIRON has a policy that its Clients should directly retain other
contractors whose services are required in connection with field services for a project(e.g.,drillers,
analytical laboratories, transporters). As a service to you, we will advise you with respect to
selecting other such contractors and will assist you in coordinating and monitoring their
performance. In no event will we assume any liability or responsibility for the work performed by
other contractors you may hire. When ENVIRON engages a subcontractor on behalf of the Client,
the expenses incurred, including rental of special equipment necessaryfor the work,will be billed as
they are incurred, at cost plus 15 percent. By engaging us to perform these services, you agree to
indemnify,defend and hold ENVIRON, its directors,officers,employees,and other agents harmless
from and against any claims, demands, judgment, obligations, liabilities and costs (including
reasonable attorneys'and expert fees)relating in anyway to the performance or non-performance of
work by another contractor, except claims for personal injury or property damage to the extent
caused by the negligence or willful misconduct of ENVIRON's employees.
3. Reporting Requirements: Client may be required under federal, state or local statutes or
regulations to report the results of ENVIRON's services to appropriate regulatory agencies.
ENVIRON is not responsible for advising Client about its reporting obligations and Client agrees that
it shall be responsible for all reporting, unless ENVIRON has an independent duty to report under
applicable law. In those situations, ENVIRON will provide Client with advance notice that ENVIRON
believes that it has an obligation to report as well as the substance of the report it intends to make.
4. RCRA Compliance: Client shall be responsible for complying with the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et. seq. ("RCRA") and its implementing
regulations in connection with ENVIRON's work under this Agreement. Client may request
ENVIRON's assistance in meeting its RCRA and other similar waste management obligations,
including analytical testing to assist Client in proper characterization of waste, identifying potential
transporters and disposal facilities for waste (provided that Client shall make the final selection of
both the transporter and disposal facility), entering into subcontracts or purchase order
arrangements with the transporters and/or disposal facilities selected by Client, and preparing
manifests for the Client's approval and execution. Client agrees that, by virtue of providing these
services, ENVIRON shall not be deemed a "generator' or a party who "arranges" for the
"transportation,""treatment" or"disposal"of any"hazardous waste" or"hazardous substance" (as
those terms are defined in the Comprehensive Environmental Response Compensation and Liability
Act or"CERCLA", 42 U.S.C. Section 9601). Client agrees to indemnify,defend and hold ENVIRON,
its directors, officers, employees and agents, harmless from and against any and all claims,
demands,judgments, obligations, liabilities, any costs(including reasonable attomeysand expert
fees) relating to: (1) ENVIRON'S work in assisting Client with its RCRA obligations; and (2) the
transportation,treatment,and disposal of hazardous substances or hazardous waste generated by
the field activities conducted for Client.
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5. Confidentiality: We treat all information obtained from Clients, not otherwise previously
known to us as confidential, unless such information comes into the public domain through no fault
of ours, or is furnished to us by a third party who is under no obligation to keep the information
confidential. If we are subpoenaed to disclose confidential information obtained from you or about
our work for you, we will give you reasonable notice and the opportunity to object before releasing
any confidential information.
6. Third Parties: ENVIRON's services are solely for Client's benefit and may not be relied
upon by any third party without ENVIRON's express written consent. Any use or dissemination of
ENVIRON work products (including ENVIRON reports), without the written consent of ENVIRON,
shall be at Client's risk and Client shall indemnify and defend ENVIRON from any and all claims,
demands,judgments, liabilities and costs(including reasonable attorneys'and expert fees), related
to the unauthorized use or dissemination of ENVIRON's work. Client also agrees to be solely
responsible for and to defend, indemnify,and hold ENVIRON harmless from and against any and all
claims, demands,judgments, liabilities and costs(including reasonable attomeys'and expert fees),
asserted by third parties arising out of or in anyway related to our performance or non-performance
of services, except for claims of personal injury or property damage to the extent caused by the
negligence or willful misconduct of ENVIRON's employees.
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EXHIBIT"B"
RATE SCHEDULE
FIXED HOURLY RATES FOR TIME AND MATERIALS CONTRACTS
ENVIRON will bill monthly for the actual time and expenses incurred on the client's behalf in
performance of the contracted effort. Labor will be billed at the fixed hourly rates indicated below.
Materials and supplies, travel, and any other direct cost plus a handling charge of 15%. A 6%
communications and computer charge will be added to all staff time charges. ENVIRON does not
directly charge for in house copies or normal phone company charges.
Category: Rate $/hr.
Principal 250
Principal Consultant 250
Manager 10 210
Manager 190
Manager 170
Senior Associate 7 155
Senior Associate 613 140
Associate 6 130
Associate 5 125
Associate 4 110
Associate 3 80
Draftsperson 75
Support 60
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