Contract No. 10724 (CCS)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement", entered into as of let. 15, 20_& ("Execution Date"), by and between the City of Santa Monica ("City") and Barry W. Leeder Inc. dba COLLECTION PLUS ("COLLECTION PLUS"), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. COLLECTION PLUS is qualified to do business, and is doing business, in the State of California. COLLECTION PLUS represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and COLLECTION PLUS now desire to enter into an agreement for COLLECTION PLUS to provide professional services to the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates on July 31, 2021, unless sooner terminated in accordance with Section 14.
1.1 Options to Extend. The City has two options, at its sole discretion, to extend the term of this Agreement on all the same terms and conditions for an additional one- year period. Each option shall be exercised by modification of this Agreement.
2. COLLECTION PLUS Services. COLLECTION PLUS will perform all of the services ("Services") described in Exhibit A, Scope of Services. COLLECTION PLUS will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to COLLECTION PLUS any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by COLLECTION PLUS.
4. Compensation. The City will compensate COLLECTION PLUS for the Services performed in an amount not to exceed $322,820, including any extensions thereof, as - 1-
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set forth in Exhibit B. However, in no event may the compensation to COLLECTION PLUS exceed $188,140 for the initial term of the agreement.
5. Invoices. COLLECTION PLUS will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
HUMAN RESOURCES
City of Santa Monica
1685 Main Street, Suite 101
Santa Monica, California 90401
Attention: ‹Name of City Contact>
Re: Contract No. 10724
with a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. 10724
6.2 All notices, demands, requests or approvals to COLLECTION PLUS:
COLLECTION PLUS
2129 Hacienda Way Suite H
Sacramento, CA 95825
Attention: Tom Econome, CFO
Re: Contract No. 10724
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint ventures of one another.
Neither the City nor its officers or employees will have any control over the conduct of COLLECTION PLUS or any of COLLECTION PLUS's agents, employees, or sub consultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement. - 2-
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This Agreement may be modified only by written agreement signed by City and COLLECTION PLUS, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, COLLECTION PLUS must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by COLLECTION PLUS or COLLECTION PLUS's agents, representatives, employees or sub consultants for the duration of this Agreement. COLLECTION PLUS must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification. As to COLLECTION PLUS's Services produced under this Agreement, COLLECTION PLUS agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, "City") from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney's fees, or payments for injury to any person or property (collectively, "Losses") caused or claimed to be caused by the acts, errors and/or omissions of COLLECTION PLUS, or COLLECTION PLUS's employees, agents, officers, and sub consultants. COLLECTION PLUS's responsibilities under this Section 10.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of COLLECTION PLUS, its employees, agents or officers, or sub consultants; provided, however, that COLLECTION PLUS's duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City. Notwithstanding COLLECTION PLUS's obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from COLLECTION PLUS, if City chooses to do so.
10.2 Enforcement Costs. COLLECTION PLUS agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transfers.
11.1 COLLECTION PLUS may not assign, hypothecate, or transfer this Agreement City's consent will be null and void, and any assignee, hypothecatee or - 3-
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transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of COLLECTION PLUS or of any general partner or joint venture or syndicate member of COLLECTION PLUS, if a partnership or joint venture or syndicate exists, which results in changing the control of COLLECTION PLUS, will be construed as an assignment of this Agreement.
Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. COLLECTION PLUS, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If COLLECTION PLUS fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City's written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to COLLECTION PLUS.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days' written notice to COLLECTION PLUS.
Upon termination of this Agreement, City will pay COLLECTION PLUS any compensation earned and unpaid up to the effective date of termination. i5. Compliance with Law. COLLECTION PLUS must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. COLLECTION PLUS may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. COLLECTION PLUS may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18. Records.
18.1 COLLECTION PLUS must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, sub consultant costs, or other direct costs. COLLECTION PLUS must - 4-
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keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 COLLECTION PLUS must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. COLLECTION PLUS must clearly identify all records and make them readily accessible to the City. At the City's request, COLLECTION PLUS must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 COLLECTION PLUS must allow the City to have free access to COLLECTION PLUS's books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit COLLECTION PLUS's records, and COLLECTION PLUS agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or more in information reported by COLLECTION PLUS, COLLECTION PLUS agrees to pay the cost of the City's audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by COLLECTION PLUS or any sub consultant for this Agreement will be the exclusive property of City.
No work product given to or prepared by COLLECTION PLUS or any sub consultant pursuant to this Agreement may be made available to any individual or organization by COLLECTION PLUS without prior written approval by City.
19.2 At the City's request, COLLECTION PLUS must furnish reports concerning the status of the Services.
20. Standard of Care. COLLECTION PLUS agrees to provide all Services, including services performed by any sub consultant, in a manner consistent with the level of care and skill ordinarily exercised by members of COLLECTION PLUS's profession currently practicing in the same locality under similar conditions.
21. Sub consultants.
21.1 If COLLECTION PLUS proposes to have any sub consultant perform any part of the Services, COLLECTION PLUS must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed sub consultant, and the total price or hourly rates used in preparing an estimated cost for the sub consultant's services. The City, in its sole discretion, may grant or deny the request.
21.2 COLLECTION PLUS will be responsible for the quality of any sub consultant's - 5-
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work. Every subcontract or agreement of any kind entered into between COLLECTION PLUS and any sub consultant (or between any sub consultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 10724 (CCS) entered into between the City of Santa Monica and COLLECTION PLUS on
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and COLLECTION PLUS agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
• Fraile
denui Anderm Mam
DENISE ANDERSON WARREN
City Clerk
APPROVED AS TO FORM:
LANE DILG
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City Attorney
COLLECTION PLUS Corporation
Tobalane
By: _
Name: Thomas C Econom
Title: Tessan/Secreta
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Exhibit A
Scope of Services
COLLECTION PLUS will perform the following services for the City:
1. Perform drug and alcohol collection testing at various City-owned sites in accordance with the federal drug free workplace act and the applicable Federal Motor Carrier Safety Administration (FMCSA) and Federal Transit Administration (FTA). COLLECTION PLUS will provide services as requested by The City. In the event of an unscheduled testing event, COLLECTION PLUS will maintain a service level objective of testing one hour from the time the test is requested.
2. Guarantee that its staff and contractors meet all the necessary Department of Transportation (DOT) requirements established by the FMCSA and FTA, hold all of the required certification, and possess factory compliant equipment and supplies to fulfill the scope of services.
3. Act as the administrator of all Federal and non-Federal drug and alcohol test results. This function will include all reporting and drug and alcohol test administration that is performed in a confidential manner and as required by EMCSA and FTA-applicable regulations. This function ill also include drug and alcohol testing performed by a City contracted medical facility.
4. Provide results of drug tests upon the laboratory's completed analysis by the laboratory 24 to 72 hours after laboratory receipt of specimen. Additional time may be necessary if the Medical Review Officer requires further review of the results. Breath Alcohol Tests (BAT) results will be available immediately.
5. Upon request, provide the City of Santa Monica with collection technicians' . correct and current certifications.
6. Upon request, provide applicable paperwork regarding Evidential Breath Testing Device factory Quality Assurance Plan.
Exhibit B
Budget
Collections Plus will provide services in accordance with the fee schedule below. The total amount of compensation for the term of this agreement, including any extensions thereof, shall not exceed $322,820 (includes a 10% contingency) and will be charged to various departmental budgets/accounts as services rendered.
Collection Plus Fee Schedule:
Drug Test Price per donor
• Laboratory portion $15.00
• MRO portion $10.00
• DOT Drug Screen Collection Fee $55.00 years 1-2
$60.00 years 3-5
• DOT Breath Alcohol Test with drug test $35.00
DOT Breath Alcohol Test without drug test $55.00
DOT Supervisory Training $100 per person, in-person
DOT random testing administration, record keeping services, and reporting are provided at no charge.
Additional Fees:
Per visit fee for the following:
After hours pre-scheduled $50.00
• After hours unscheduled $200.00
Normal hours unscheduled $100.00
• Wait time after one hour on-site $30.00
(billed in 15 minute increments)
• No-show or refusal for only one donor. $50.00
All surcharges apply.
Note: Normal hours are Monday through Friday, 8:00 am to 5:00 pm. After hours are all other hours, including holidays. Pre-scheduled is one working day prior to a collection.
Exhibit C
Insurance Requirements and Verifications
COLLECTION PLUS shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by COLLECTION PLUS, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if COLLECTION PLUS has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Professional Liability: Insurance appropriate to COLLECTION PLUS's profession with limits of no less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
If COLLECTION PLUS maintainis broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to any broader coverage and higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, 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 COLLECTION PLUS including materials, parts, or equipment furnished in connection with such work or operations. CL coverage can be provided in the form of an endorsement to COLLECTION PLUS's insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 20 26, CG 20 33, or CG 20.38 and (2) CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, COLLECTION PLUS's insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self insurance maintained by the City of Santa Monica; its officers, officials, employees or volunteers shall be in excess of COLLECTION PLUS's insurance and shall not contribute with it. c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation: COLLECTION PLUS hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said COLLECTION PLUS may acquire against the City of Santa Monica by virtue of payment of any loss. COLLECTION PLUS 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 of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require COLLECTION PLUS to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VIl, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides "claims made" coverage:
a. The Retroactive Date must be shown and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained, and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another "claims made" policy form with a Retroactive Date prior to the effective Agreement date, COLLECTION PLUS must purchase "extended reporting" coverage for a minimum of 5 years after completion of work.
Verification of Coverage
COLLECTION PLUS shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive COLLECTION PLUS's obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
• Failure to Maintain Insurance Coverage
If COLLECTION PLUS, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from COLLECTION PLUS resulting from said breach.
Subcontractors
COLLECTION PLUS shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers' Compensation insurance coverage is not required if COLLECTION PLUS does not have employees. COLLECTION PLUS must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.