Contract No. 10531 (CCS)
CONTRACTUAL SERVICES AGREEMENT
This Contractual Services Agreement "Contract"), entered into chis 20th day of December, 20_17. _ ("Execution Date"), by and between the CITY OF SANTA MONICA, a municipal corporation ("City"), and Plumbing by Todd R Marsh, Inc. ("TRM SERVICES"), 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. TRM SERVICES is qualified to do business, and is doing business, in the State of California. TRM SERVICES represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Contract.
C. The City and TRM SERVICES desire to enter into an agreement for the TRM SERVICES to provide contractual services to the City as set forth herein, upon the terms and conditions set forth below.
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 October 31, 2018, unless sooner terminated in accordance with Section 14.
1.1 Option to Extend. The City, in its sole and complete discretion, shall have the option to renew this agreement for (2) additional (2) year periods ("Extension Term"), in accordance with the schedule set forth in Exhibit B.
2. TRM SERVICES Services. TRM SERVICES will perform all of the services ("Services") described in Exhibit A, Scope of Services. TRM SERVICES will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to TRM SERVICES 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 TRM SERVICES.
4. Compensation. The City will compensate TRM SERVICES for the Services performed in an amount not to exceed $200,000, as set forth in Exhibit B. - 1-
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4.1 Total Amount Not To Exceed. In the event the City exercises the (2) additional (2) year renewal options, the total amount for the Term and Extension Terms) shall not exceed $1,040,808 as set forth in Exhibit B.
5. Invoices. TRM SERVICES 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:
Facilities Maintenance Division
City of Santa Monica
2500 Michigan Avenue
Santa Monica, California 90404
Attention: Shidan Adlparvar
Re: Contract No. 10531
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. 10531
6.2 All notices, demands, requests or approvals to TRM SERVICES:
TRM SERVICES
5951 Venice Blvd.
Los Angeles, CA 90034
Attention: Todd R. Marsh
Re: Contract No. 10531
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of TRM SERVICES or any of TRM SERVICES's agents, employees, or subconsultants, 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 TRM SERVICES, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, TRM SERVICES 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 TRM SERVICES or TRM SERVICES's agents, representatives, employees or subconsultants for the duration of this Agreement. TRM SERVICES 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 TRM SERVICES 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 act, errors, and/or omissions of TRM SERVICES, or TRM SERVICES's employees, agents, officers, and subconsultants. TRM SERVICES'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 TRM SERVICES, its employees, agents or officers, or subconsultants; provided, however, that TRM SERVICES'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 TRM SERVICES's obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from TRM SERVICES, if City chooses to do so.
10.2 Enforcement Costs. TRM SERVICES 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 TRM SERVICES may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City's consent will be null and void, and any assignee, hypothecatee or 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 TRM SERVICES or of any general partner or joint - 3 -
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venturer or syndicate member of TRM SERVICES, if a partnership or joint venture or syndicate exists, which results in changing the control of TRM SERVICES, 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. TRM SERVICES, 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 TRM SERVICES 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 TRM SERVICES.
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 TRM SERVICES. Upon termination of this Agreement, City will pay TRM SERVICES any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. TRM SERVICES 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. TRM SERVICES 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. TRM SERVICES 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 TRM SERVICES 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, subconsultant costs, or other direct costs. TRM SERVICES must 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 TRM SERVICES must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting - 4-
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principles. TRM SERVICES must clearly identify all records and make them readily accessible to the City. At the City's request, TRM SERVICES must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 TRM SERVICES must allow the City to have free access to TRM SERVICES'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 TRM SERVICES's records, and TRM SERVICES 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 TRM SERVICES, TRM SERVICES 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 TRM SERVICES or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by TRM SERVICES or any subconsultant pursuant to this Agreement may be made available to any individual or organization by TRM SERVICES without prior written approval by City.
19.2 At the City's request, TRM SERVICES must furnish reports concerning the status of the Services.
20. Standard of Care. TRM SERVICES agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of TRM SERVICES's profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If TRM SERVICES proposes to have any subconsultant perform any part of the Services, TRM SERVICES must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant's services. The City, in its sole discretion, may grant or deny the request.
21.2 TRM SERVICES will be responsible for the quality of any subconsultant's work.
Every subcontract or agreement of any kind entered into between TRM SERVICES and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 10531 (CCS) entered into between the City of Santa Monica and TRM SERVICES on
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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 TRM SERVICES 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 Contract 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.
CITY OF SANTA MONICA,
ATTEST: a municipal corporation
Pick Gle
Denise Andusm Nara
DENISE ANDERSON-WARREN RICK COLE
City Clerk City Manager
APPROVED AS TO FORM:
LANE DILG
City Attorney
TRM SERVICES Corporation
By: _
Name: _ Todd R. Marsh
Title: Pres teec
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Exhibit A
Scope of Services
1. GENERAL. TRM Services shall provide plumbing contractor services as required by the Facilities Maintenance Division. Work may include, but is not limited to, water, sewer and gas line repairs, excavations, re-piping, and replacements / installations / repairs of various plumbing fixtures. Jobs shall be quoted individually and requested as required (no guaranteed usage).
2. APPROVAL OF WORK. TRM Services shall provide a written proposal with pricing for approval for all jobs requested by Facilities Maintenance staff. All work under this contract must be authorized by the Plumber Crew Leader, Facilities Supervisor or Facilities Services Administrator. City staff shall approve all jobs in writing prior to the start of work (generally in the form of an e-mail) with the exception of emergency work requested by staff to address a clear and present hazard to the public, City staff, the environment and/or City property (e.g. repairs of water, sewage or gas leaks or other items). A written proposal or invoice shall be submitted to the City with accurate cost information as soon as is practicable after emergency work approval based on a verbally provided cost estimate.
3. CONTRACTORS LICENSE / REGISTRATION WITH THE STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS. TRM Services shall maintain a valid C36 Plumbing California State Contractors License during the term of this agreement. TRM Services shall maintain a valid registration as a Public Works contractor on the Department of Industrial Relations website:
http://www.dir.ca.gov/Public-Works/PublicWorks.html
4. PERFORMANCE OF WORK. Work dates / times shall be coordinated in advance with City Plumbing staff who shall facilitate access to City locations. The City may opt to provide materials and/or labor to assist with various plumbing contractor work.
5. PREVAILING WAGE / CERTIFIED PAYROLL RECORDS. TRM Services shall perform all services under this contract under prevailing wage. Certified payroll records shall be submitted electronically via the State Department of Industrial Relations' electronic Certified Payroll Reporting (eCPR) system, and if requested, to Facilities Maintenance staff.
6. WASTE MATERIALS DISPOSAL. TRM Services shall remove any hazardous waste materials generated by work performed under this contract per Environmental Protection Agency (EPA) regulations. It is TRM Services' sole responsibility to ensure that all hazardous waste materials are either recycled safely and effectively or treated and disposed of in landfills or incinerators per EPA guidelines.
Exhibit B
Budget
I. Labor Rates. Jobs shall be quoted individually with specifications provided by Facilities Maintenance staff using the labor rates noted below (per Bid 4281):
1.1. Contract Term - Year One (Contract Execution date to October 31, 2018).
Regular Hourly Rate - $70.00/hr.
Monday - Friday, 3 p.m. - 6 p.m. & Saturday, 6 a.m. - 6 p.m.: $92.50/hr.
Monday - Saturday, 6 p.m. - 6 a.m. & All Day Sunday: $140.00/hr.
1.2. First Extension Term - Year Two (November 1, 2018 - October 31, 2019).
Regular Hourly Rate - $71.40/hr.
Monday - Friday, 3 p.m. - 6 p.m. & Saturday, 6 a.m. - 6 p.m.: $94.35/hr.
Monday - Saturday, 6 p.m. - 6 a.m. & All Day Sunday: $142.80/hr.
1.3. First Extension Term - Year Three (November 1, 2019 - October 31, 2020).
Regular Hourly Rate - $72.83/hr.
Monday - Friday, 3 p.m. - 6 p.m. & Saturday, 6 a.m. - 6 p.m.: $96.24/hr.
Monday - Saturday, 6 p.m. - 6 a.m. & All Day Sunday: $145.66/hr.
1.4. Second Extension Term - Year Four (November 1, 2020 - October 31, 2021).
Regualr Hourly Rate - $74.28/hr.
Monday - Friday, 3 p.m. - 6 p.m. & Saturday, 6 a.m. - 6 p.m.: $98.16/hr.
Monday - Saturday, 6 p.m. - 6 a.m. & All Day Sunday: $148.56/hr.
1.5. Second Extension Term - Year Five (November 1, 2021 - October 31, 2022).
Regular Hourly Rate - $75.77/hr.
Monday - Friday, 3 p.m. - 6 p.m. & Saturday, 6 a.m. - 6 p.m.: $100.12/hr.
Monday - Saturday, 6 p.m. - 6 a.m. & All Day Sunday: $151.54/hr.
Il. Additional Pricing.
2.1.1. Minimum call-out charge shall be $206.00-Same Price, Terms and Conditions offered throughout the Contract Term.
2.1.2. Rates for equipment, materials and reimburseables shall be indicated on individual job proposals.
Ill. Invoices. TRM Services shall invoice the City per job under Net 30 terms.
Exhibit C
Insurance Requirements
Contractual Services Agreement Insurance Requirements and Verifications Contractor 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 the Contractor, 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 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 Contractor 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).
If the Contractor maintains higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to coverage for the 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 (CGL): 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 Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance at least as broad as Insurance Services Office Form CG 20 10 11 85.
b. Primary Coverage (CGL and Auto): For any claims related to this Agreement, the Contractor's insurance shall be primary 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 the Contractor's insurance and shall not contribute with it.
c. Notice of Cancellation (all policies): 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 (all policies): Contractor hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Contractor may acquire against the City of Santa Monica by virtue of payment of any loss.
Contractor 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.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by the Contractor, its employees, agents and subcontractors.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Contractor to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
Contractor shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. 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 the Contractor'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 Contractor, 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 the Contractor resulting from said breach. Alternatively, the City of Santa Monica may purchase such coverage (but has no special obligation to do so), and without further notice to the Contractor, the City may deduct from sums due to the Contractor any premium costs advanced by the City for such insurance.
Subcontractors
Contractor 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 the Contractor does not have employees. The Contractor must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.