B-1
APPROVED FOR USE 06/02/2015
154291.1
PROFESSIONAL SERVICES AGREEMENT
(City of Barstow/Synagro)
1. IDENTIFICATION
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into by and between the City of Barstow, a California municipal corporation (“City”), and Synagro a California Corporation (“Consultant”).
2. RECITALS
2.1 City has determined that it requires the following professional services from a consultant: bio-solids removal and disposal of municipal sewage sludge resulting from the treatment of wastewater at the City’s Wastewater Treatment Plant at 2200 E. Riverside Dr., Barstow CA 92311.
2.2 Consultant represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education, and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:
3. DEFINITIONS
3.1 “Scope of Services”: Such professional services as are set forth in Consultant’s proposal to City attached hereto as Attachment 1 and incorporated herein by this reference.
3.2 “Approved Fee Schedule”: Such compensation rates as are set forth in Consultant’s fee schedule to City attached hereto as Attachment 2 and incorporated herein by this reference.
3.3 “Commencement Date”: September 20, 2022.
3.4 “Expiration Date”: September 20, 2027.
4. TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall expire at 11:59 p.m. on the Expiration Date unless extended by written agreement of the parties or terminated earlier in accordance with Section 17 (“Termination”) below.
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5. CONSULTANT’S SERVICES
5.1 Consultant shall perform the services identified in the Scope of Services. Shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement. In no event shall the total compensation and costs payable to Consultant under this Agreement exceed the sum of Forty-seven Dollars and thirtynine cents ($47.39) unless specifically approved in advance and in writing by City.
5.2 Consultant shall obtain a City business license prior to commencing performance under this Agreement.
5.3 Consultant shall perform all work to the highest professional standards of Consultant’s profession and in a manner reasonably satisfactory to City. Consultant shall comply with all applicable federal, state, and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.).
5.4 During the term of this Agreement, Consultant shall not perform any work for another person or entity for whom Consultant was not working at the Commencement Date if both (i) such work would require Consultant to abstain from a decision under this Agreement pursuant to a conflict of interest statute and (ii) City has not consented in writing to Consultant’s performance of such work.
5.5 Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by the Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Robert Ford shall be Consultant’s project administrator and shall have direct responsibility for the management of the Consultant’s performance under this Agreement. No change shall be made in the Consultant’s project administrator without City’s prior written consent.
5.6 Consultant has represented to the City that key personnel will perform and coordinate the services under this Agreement. Should one or more of such personnel become unavailable, the Consultant may substitute other personnel of at least equal competence upon written approval of the City. If the City and Consultant cannot agree as to the substitution of key personnel, the City may terminate this Agreement for cause.
5.7 Consultant shall not be reimbursed for any expenses unless provided for in this Agreement or authorized in writing by City in advance.
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6. COMPENSATION
6.1 City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept in full satisfaction for such services, payment in accordance with the Approved Fee Schedule.
6.2 Consultant shall submit to City an invoice, on a monthly basis or less frequently, for the services performed pursuant to this Agreement. Each invoice shall itemize the services rendered during the billing period and the amount due. Within ten business days of receipt of each invoice, City shall notify the Consultant in writing of any disputed amounts included on the invoice. Within thirty calendar days of receipt of each invoice, City shall pay all undisputed amounts included on the invoice. The City shall not withhold applicable taxes or other authorized deductions from payments made to the Consultant.
6.3 Payments for any services requested by the City and not included in the Scope of Services shall be made to the Consultant by City on a time-and-materials basis using the Consultant’s standard fee schedule. Consultant shall be entitled to increase the fees in this fee schedule at such time as it increases its fees for its clients generally; provided, however, in no event shall Consultant be entitled to increase fees for services rendered before the thirtieth day after Consultant notifies City in writing of an increase in that fee schedule. Fees for such additional services shall be paid within sixty days of the date Consultant issues an invoice to City for such services.
7. OWNERSHIP OF WRITTEN PRODUCTS
7.1 All reports, documents, or other written material (“written products” herein) developed by Consultant in the performance of this Agreement shall be and remain the property of City without restriction or limitation upon its use or dissemination by City. Consultant may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by the Consultant
7.2 Consultant represents and warrants that Consultant has the legal right to utilize all intellectual property Consultant will utilize in the performance of its obligations pursuant to this Agreement. Consultant further represents that Consultant shall ensure City has the legal right to utilize all intellectual property involved in and/or resulting from Consultant’s performance of this Agreement.
8. RELATIONSHIP OF PARTIES
The Consultant is, and shall at all times remain as to City, a wholly independent contractor.
Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control Professional Services Agreement
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over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not represent that it is, or that any of its agents or employees are, in any manner employees of City.
9. CONFIDENTIALITY
All data, documents, discussion, or other information developed or received by Consultant or provided for the performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written consent by the City. The City shall grant such consent if the disclosure is legally required. Upon request, all City data shall be returned to City upon the termination or expiration of this Agreement.
10. INDEMNIFICATION
10.1 The parties agree that City, its officers, agents, employees, and volunteers should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement.
Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and construed to provide the City with the fullest protection possible under the law. Consultant acknowledges that City would not enter into this Agreement in the absence of Consultant’s commitment to indemnify and protect City as set forth herein.
10.2 To the fullest extent permitted by law, Consultant shall indemnify, hold harmless, and when the City requests with respect to a claim provide a deposit for the defense of, and defend City, its officers, agents, employees, and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, and injury to any property arising out of or in connection with Consultant’s alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of Consultant or any of its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either Consultant or its subcontractors, in the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole active negligence or willful misconduct of the City.
Such costs and expenses shall include reasonable attorneys’ fees due to counsel of the City’s choice, expert fees, and all other costs and fees of litigation. Consultant shall not be entitled to any refund of attorney’s fees, defense costs, or expenses in the event that it is adjudicated to have been non-negligent.
10.3 City shall have the right to offset against the amount of any compensation due Consultant under this Agreement any amount due City from Consultant as a result of Consultant’s failure to pay City promptly any indemnification arising under this Section 10 and related to Consultant’s failure to either (i) pay taxes on amounts Professional Services Agreement
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received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.
10.4 The obligations of Consultant under this Section 10 will not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees, and volunteers.
10.5 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 10 from each and every subcontractor 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 herein, to the fullest extent permitted by law, Consultant agrees to be fully responsible and indemnify, hold harmless and defend City, its officers, agents, employees, and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of Consultant’s subcontractors or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of the City’s choice.
10.6 City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy, or certificate required pursuant to this Agreement. This holds harmless and the indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense.
11. INSURANCE
11.1 During the term of this Agreement, Consultant shall carry, maintain, and keep in full force and effect insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with Consultant’s performance of this Agreement.
11.2 Any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements or limits shall be available to the Additional Insured. Furthermore, the requirements for coverage and limits shall be the greater of (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named Insured.
11.3 Insurance required under this Agreement shall be of the types set forth below, with minimum coverage as described:
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11.3.1 Comprehensive General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000) including products and operations hazard, contractual insurance, broad form property damage, independent consultants, personal injury, underground hazard, and explosion and collapse hazard where applicable.
11.3.2 Automobile Liability Insurance for vehicles used in connection with the performance of this Agreement with minimum limits of One Million Dollars ($1,000,000) per claimant and One Million dollars ($1,000,000) per incident.
11.3.3 Worker’s Compensation insurance as required by the laws of the State of California.
11.4 Consultant shall require each of its subcontractors to maintain insurance coverage that meets all of the requirements of this Agreement.
11.5 The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least A:VII in the latest edition of Best’s Insurance Guide.
11.6 Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, City may either (i) immediately terminate this Agreement; or (ii) take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.
11.7 At all times during the term of this Agreement, Consultant shall maintain on file with City’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming the City and its officers, employees, agents, and volunteers as additional insureds. Consultant shall, prior to commencement of work under this Agreement, file with City’s Risk Manager such certificate(s).
11.8 Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages.
11.9 The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming City and its officers, employees, agents, and volunteers as additional insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty days prior written notice to City. The Consultant agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” Professional Services Agreement
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with regard to any notice provisions.
11.10 The insurance provided by the Consultant shall be primary to any coverage available to the City. Any insurance or self-insurance maintained by the City and/or its officers, employees, agents, or volunteers, shall be in excess of the Consultant’s insurance and shall not contribute to it.
11.11 All insurance coverage provided pursuant to this Agreement shall not prohibit Consultant, and Consultant’s employees, agents, or subcontractors, from waiving the right of subrogation prior to a loss. The Consultant hereby waives all rights of subrogation against the City.
11.12 Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, the Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to the City, or the Consultant shall procure a bond guaranteeing payment of losses and expenses.
11.13 Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duties to indemnify, hold harmless and defend under Section 10 of this Agreement.
11.14 Consultant shall report to the City, in addition to the Consultant’s insurer, any and all insurance claims submitted to Consultant's insurer in connection with the services under the Agreement.
11.15 Consultant may be self-insured under the terms of this Agreement only with the express written approval from the City.
11.15.1 All self-insured retentions (SIR) must be disclosed to the City for approval and shall not reduce the limits of liability.
11.15.2 Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the names Insured or the City.
11.16 City reserves the right to obtain a full certified copy of any Insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to exercise later.
Professional Services Agreement
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12. MUTUAL COOPERATION
12.1 The City shall provide the Consultant with all pertinent data, documents, and other requested information as is reasonably available for the proper performance of the Consultant’s services under this Agreement.
12.2 In the event any claim or action is brought against City relating to Consultant’s performance in connection with this Agreement, Consultant shall render any reasonable assistance that City may require.
13. RECORDS AND INSPECTIONS
Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of the City or as part of any audit of City, for a period of three (3) years after final payment under the Agreement.
14. PERMITS AND APPROVALS
Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary in the performance of this Agreement. This includes, but shall not be limited to, encroachment permits and building and safety permits and inspections.
15. NOTICES
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile, or overnight courier service during Consultant’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
Professional Services Agreement
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If to City
City of Barstow
Attention: City Manager
220 E. Mt. View Street, Ste. A
Barstow, CA 92311
Telephone: (760) 256-3531
If to Consultant:
Synagro
ATTN: Robert Ford
P.O. Box 1439
Helendale CA 92342
Telephone: (323) 843-7265
Facsimile: ______________
With a courtesy copy to:
Matthew Summers
City Attorney
Colantuono, Highsmith & Whatley, PC
300 S. Grand Ave, Suite 2700
Los Angeles, CA 90071-3137
Telephone: (213) 542-5700
16. SURVIVING COVENANTS
The parties agree that the covenants contained in Section 9, Section 10, Paragraph 12.2 and Section 13 of this Agreement shall survive the expiration or termination of this Agreement.
17. TERMINATION
17.1. City shall have the right to terminate this Agreement for any reason on five calendar days’ written notice to Consultant. Consultant shall have the right to terminate this Agreement for any reason on sixty calendar days’ written notice to City. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials, or other tangible things shall be returned to City upon the termination or expiration of this Agreement.
17.2 If City terminates this Agreement due to no fault or failure of performance by Consultant, then Consultant shall be paid based on the work satisfactorily performed at the time of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement.
18. GENERAL PROVISIONS
18.1 Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Professional Services Agreement
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Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subcontractor to file, a Statement of Economic Interest with the City’s Filing Officer if required under state law in the performance of the services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
18.2 Consultant shall not delegate, transfer, sub-contract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and any attempt to do so shall be void and of no effect. The City shall not be obligated or liable under this Agreement to any party other than the Consultant.
18.3 This Agreement shall be binding on the successors and assigns of the parties.
Except as expressly stated herein, there is no intended third party beneficiary of any right or obligation assumed by the parties.
18.4 Time is of the essence for each and every provision of this Agreement.
18.5 In the performance of this Agreement, the Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition or any other unlawful basis.
18.6 The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the section or paragraph thereof, as the case may be, and not such heading, shall control and govern in the construction of this Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).
18.7 The waiver by the City or Consultant of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or of any subsequent breach of the same or any other term, covenant, or condition herein contained. No term, covenant, or condition of this Agreement shall be deemed to have been waived by the City or the Consultant unless in writing.
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18.8 The Consultant shall not be liable for any failure to perform if the Consultant presents acceptable evidence, in the City’s sole judgment, which such failure was due to causes beyond the control and without the fault or negligence of the Consultant.
18.9 Each right, power, and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance of the exercise by any party of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by such party of any of all of such other rights, powers, or remedies. In the event legal action shall be necessary to enforce any term, covenant or condition herein contained, the party prevailing in such action, whether reduced to judgment or not, shall be entitled to its reasonable court costs, including accountants’ fees, if any, and attorneys’ fees expended in such action.
The venue for any litigation shall be San Bernardino County, California.
18.10 If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
18.11 This Agreement shall be governed and construed in accordance with the laws of the State of California.
18.12 All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between the City and the Consultant with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed by City and Consultant.
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154291.1
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “City” “Consultant”
City of Barstow __________________________
By: __________________________ By: _______________________________ Willie A. Hopkins, City Manager
Date: _______________ Date: __________________
By: _______________________________
Date: __________________
Attest:
By
Andrea Flores, City Clerk
Date:
Approved as to form:
By
Matthew T. Summers, City Attorney