AGREEMENT FOR PROFESSIONAL SERVICES
INFRASTRUCTURE ASSET DATA COLLECTION SERVICES
This Agreement is made on May 16, 2023, by and between NCE, a California Corporation (“Consultant”) and the City of Santa Maria, a California Municipal Corporation and charter city (“City”), in Santa Maria, California, based on the following recitals:
WHEREAS, City has determined it is in the public interest to proceed with the work hereinafter described as "Project"; and
WHEREAS, City does not have available employees to perform the services for the Project; and
WHEREAS, City has requested the Consultant to provide manpower to complete the Project; and
WHEREAS, Consultant is registered or licensed in California to perform desired services for the Project.
NOW, THEREFORE, IT IS AGREED:
1. Recitals true. The above recitals are true.
2. General.
2.1 Term and Termination. The term of this contract is two years, beginning on the date first written above. This contract may be extended by mutual consent of the parties. This contract may be terminated for breach of its terms or conditions, or because of discovery of any act which violates local, state or federal la w. Termination is effective 14 days after deposit of notice as specified in this Agreement.
2.2 Services to be Performed. Consultant shall determine the method, details and means of performing Infrastructure Asset Data Collection services. More specifically, Consultant agrees to perform the specific services listed in Exhibit “A.”
2.3 City’s Duties. City’s duties under this Agreement are to cooperate with Consultant in the performance of the contract and timely pay invoices.
2.4 Payment. Payment terms under this Agreement are listed in Exhibit “B.”
2.5 Insurance. Consultant shall provide insurance as listed in Exhibit “C.”
2.6 Exhibits. Exhibits “A,” “B,” and “C” are attached and incorporated.
3. Consultant’s Obligations.
3.1 Minimum Amount of Service. Consultant shall devote sufficient time to perform services under this agreement efficiently and effectively. Consultant may represent, perform services for and be employed by additional individuals or entities, in Consultant’s sole discretion, as long as the performance of these extra-contractual services does not interfere with or present a conflict with City's business.
3.2 Tools and Equipment. Except as otherwise stated in this Agreement, Consultant will supply all tools and equipment necessary to perform this Agreement.
3.3 Status. Consultant (including its employees) is an independent consultant and all persons working for or under the direction of Consultant are its agents or employees and not agents or employees of the City. No employer/employee relationship exists between Consultant and the City.
Consultant's assigned personnel shall not be entitled to any benefits payable to employees of the City. The City is not required to make any deductions or withholdings from the compens ation payable to Consultant under this agreement. Consultant (as a business entity, including its employees) is a “design professional” as defined by California Civil Code section 2782.8(c)(3).
3.4 Indemnification. To the fullest extent permitted by law, the Consultant shall indemnify, defend (with independent counsel approved by the City) and hold harmless the City, and its directors, officers, and employees from and against all liabilities (including without limitation all claims, losses, damages, penalties, fines, and judgments, associated investigation and administrative expenses, and defense costs, including but not limited to reasonable attorneys’ fees, court costs and costs of alternative dispute resolution) regardless of nature or type that arise ou t of, pertain to, or relate to the negligence, reckless, or willful misconduct of the Consultant including its employees. The provisions of this paragraph survive completion of the services or the termination of this contract. The provisions of this Section are not limited by the provisions of the Section relating to insurance.
Further, Consultant will defend and indemnify City, and hold it harmless, from any claim, demand or liability that is related to, or results from an assertion that as a result of providing services to City, an employee of Consultant or a person performing work pursuant to this Agreement is entitled to benefits from, or is covered by, the California Public Employee Retirement System.
4. Miscellaneous
4.1 Notices. All communication relating to the day -to-day activities of this Agreement shall be exchanged between a designated representative of the City and a representative of Consultant, listed below . All notices shall be addressed as follows unless a written change is filed with the City:
To City:
Thomas M. Korman, P.E.
Principal Civil Engineer
110 East Cook Street
Santa Maria, CA 93454
To Consultant:
Vivek Jha, PE
Client Manager
285 N Ventura Ave, Ventura,
CA 93001
If the designated representative or address of either party changes during the term of this agreement, a written notice shall be given to the other party prior to the effective date of change. Any written notices required under this agreement shall be effective five (5) days after deposit into United States mail, postage prepaid, addressed to the designated representative, or upon confirmation of receipt of delivery if another notification process is used.
4.2 Compliance With Laws, etc. Consultant shall comply with all laws, including but not limited to the rules and policies of the City, in performing this agreement.
4.3 Integration. This agreement constitutes the entire agreement of the parties with respect to the subject matter. All modifications, amendments, or waivers of th e terms of this agreement must be in writing and signed by the appropriate representatives of the parties.
4.4 Interpretation. This agreement shall be interpreted in accordance with the laws of the State of California.
4.5 Jurisdiction. Jurisdiction and venu e of all disputes over the terms of this agreement shall be in the County of Santa Barbara, State of California.
4.6 Warranty of authority. Each person signing this agreement on behalf of a party warrants that he or she has authority to do so.
4.7 No Waiver. Failure to enforce with respect to a default shall not be construed as a waiver.
4.8 Severability. The provisions of this agreement are severable. If any part of this agreement is held invalid by a court of competent jurisdiction, the remainder of the agreem ent shall remain in full force and effect unless amended or modified by mutual written consent of the parties.
4.9 Submittals. In addition to any other submittals required by this agreement, Consultant shall submit copies of its current business license and current certificate of workers compensation coverage to the City before beginning work on this project.
4.10 Prevailing Wage. If applicable, Consultant and all subconsultants are
required to pay the general prevailing wage rates of per diem wages and overtime and holiday wages determined by the Director of the Department of Industrial Relations under Section 1720 et seq. of the California Labor Code.
The Director's determination is on file and open t o inspection at www.dir.ca.gov and is referred to and made a part hereof; the wage rates therein ascertained, determined and specified are referred to and made a part hereof as though fully set forth herein.
4.11 City Approved Staff. Public Works Director shall approve Consultant project manager assigned to the project. Consultant shall not change staffing without prior written approval.
IN WITNESS WHEREOF, this agreement is executed by the parties on the date first written above.
NCE
___________________________
Michael J Leacox
Vice President
CITY OF SANTA MARIA, a political subdivision
of the State of California
Brett Fulgoni
Director Public Works
ATTEST:
Rhonda M. White, CMC
Chief Deputy City Clerk
APPROVED AS TO FORM:
_______________________________
Risk Manager
_______________________________
City Attorney
EXHIBIT “A”
SCOPE OF SERVICES
EXHIBIT “B”
PAYMENT
I. Progress Authorization
Written authorization to proceed from the City authorizes the Consultant to generate the not-toexceed cost of NINETY-SEVEN THOUSAND AND FIVE- HUNDRED DOLLARS($97,500.00) in fees for all work under this contract . City shall prepare written authorization to proceed for specific tasks prior to authorization. These tasks shall be determined on an as-needed and on-call basis.
II. Invoice procedure.
A. Individual task orders will be created under this Master Agreement for the completion of each task and billed according to the attached rate sheet.
B. The Consultant shall present the bill for charges by the second day of the month.
C. The Consultant's bill shall be substantiated by appropriate documentation, and include an itemized listing of personnel, subConsultants, and other direct costs incurred.
III. Maximum billable amounts
Under no circumstance shall the total of all payments to the Consultant exceed ninety percent (90%) of the maximum not-to-exceed cost, prior to acceptance by the City of all items to be completed as noted within Exhibit "A".
EXHIBIT “C”
INSURANCE REQUIREMENTS
Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his/her agents, representatives, or employees. If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001), including products and completed operation s, property damage, bodily injury and personal & advertising injury.
2. Insurance Services Office Business Auto Coverage Form Number CA 00 01 covering any auto (Code 1), or if Consultant has no owned autos, covering hired (Code 8) and non-owned autos (Code 9).
3. Workers' Compensation insurance as required by the State of California and Employer's 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:
1. General Liability - $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability - $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Statutory limits.
4. Employer's Liability - $1,000,000 per accident for bodily injury or disease.
5. Errors and Omissions Liability - $1,000,000 per occurrence or claim, $2,000,000 aggregate.
C. Self-insured Retentions
Self-insured retentions must be declared to and approved by the City.
The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the retention.
D. Other Insurance Provisions
The liability policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or
operations. General liability coverage can be provided in the form or an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 2 0 38 and CG 20 37 forms if later revisions are used).
2. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects 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 excess of the Consultant's insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or reduced, except with notice stating the title of this contract to the City. All notices provided pursuant to this Agreement shall be given
to the City representative listed for notice in this agreement and shall specify the title of this Agreement. Notice may be given by overnight mail, facsimile with confirmation of receipt, or certified mail with return-receipt requested.
4. Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
5. If any of the required policies provide claims-made coverage:
a. The Retroactive Date must be shown, and must b e
before the date of the contract or the beginning of contract work. b. Insurance must be maintained and evidence of
insurance must be provided for at least five (5) years after completion of the contract of work.
c. If coverage is canceled or no n-renewed, and not
replaced with another claims -made policy form with a
Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
E. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
F. Verification of Coverage
Consultant shall furnish the City with original certifica tes and amendatory endorsements of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences.
However, failure to obtain the required doc uments prior to the work beginning shall not waive the Consultant’s obligation to provide them.
The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
G. Special Risks or Circumstances
The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.