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Agreement No. 4980
CONTRACTUAL SERVICES AGREEMENT
This Contractual Services Agreement (“Agreement”), entered into as of _________________ (“Execution Date”), by and between the CITY OF SANTA MONICA, a municipal corporation (“City”), and NATURAL GAS SYSTEMS, INC. (“NGS”), 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. NGS is qualified to do business, and is doing business, in the State of California.
NGS represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and NGS desire to enter into an agreement for the NGS 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 one (1) year after the Execution Date (“Original Term”), unless sooner terminated in accordance with Section 14.
1.1. Option to Extend. The City, in its sole and absolute discretion, shall have the option to renew this Agreement for up to four (4) additional one-year periods (each referenced herein as an “Extension Term”). The City may exercise each 1-year option by letter to the Contractor from its City Manager prior to the end of the Original Term or prior to the end of any Extension Term, if any. The exercise of each 1-year option shall automatically extend the term of this Agreement up through the end of the Extension Term.
2. NGS Services. NGS will perform all of the services (“Services”) described in Exhibit A, Scope of Services. NGS will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to NGS any currently existing documents, data or information required for the performance of the Services.
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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 NGS.
4. Compensation. The City will compensate NGS for the Services performed in an amount not to exceed $246,000, as set forth in Exhibit B.
5. Invoices. NGS 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:
Fleet Management Division
City of Santa Monica
2500 Michigan Blvd. Building F
Santa Monica, California 90401
Attention: Doris Mejia
Re: Contract No. 4980
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. 4980
6.2 All notices, demands, requests or approvals to NGS:
NGS
3334 E Coast Hwy
Corona Del Mar, CA 92625
Attention: John Shield
[email protected]
Re: Contract No. 4980
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 NGS or any of NGS’s agents, employees, or subcontractors, except as otherwise provided in this Agreement.
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8. Integrated Agreement. 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. This Agreement may be modified only by written agreement signed by City and NGS, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, NGS 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 NGS or NGS’s agents, representatives, employees or subcontractors for the duration of this Agreement. NGS 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 NGS 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 NGS, or NGS’s employees, agents, officers, and subcontractors. NGS’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 NGS, its employees, agents or officers, or subcontractors; provided, however, that NGS’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 NGS’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from NGS, if City chooses to do so.
10.2 Enforcement Costs. NGS 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 NGS 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.
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11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of NGS or of any general partner or joint venturer or syndicate member of NGS, if a partnership or joint venture or syndicate exists, which results in changing the control of NGS, 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. NGS, 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 NGS 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 NGS.
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 NGS. Upon termination of this Agreement, City will pay NGS any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. NGS 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 including, but not limited to, Articles 2 and 3, Division 2, Part 7, Chapter 1 of the Labor Code, State of California related to prevailing wage, apprentices, penalties, and certified payroll.
16. Notice of Registration Requirements with and Compliance Monitoring and Enforcement by the Department of Industrial Relations. NGS hereby acknowledges and agrees that:
16.1No contractor or subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
16.2No contractor or subcontractor may be awarded an agreement for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
16.3This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
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17. Discrimination. NGS 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.
18. Nuisance. NGS may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
19. Records.
19.1 NGS 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, subcontractor costs, or other direct costs. NGS 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.
19.2 NGS must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. NGS must clearly identify all records and make them readily accessible to the City. At the City’s request, NGS must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
19.3 NGS must allow the City to have free access to NGS’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 NGS’s records, and NGS 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 NGS, NGS 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.
20. Work Product; Reports.
20.1 Any work product prepared or caused to be prepared by NGS or any subcontractor for this Agreement will be the exclusive property of City. No work product given to or prepared by NGS or any subcontractor pursuant to this Agreement may be made available to any individual or organization by NGS without prior written approval by City.
20.2 At the City’s request, NGS must furnish reports concerning the status of the Services.
21. Standard of Care. NGS agrees to provide all Services, including services performed by any subcontractor, in a manner consistent with the level of care and skill ordinarily exercised by members of NGS’s profession currently practicing in the same locality under similar conditions.
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22. Subcontractors.
22.1 If NGS proposes to have any subcontractor perform any part of the Services, NGS must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subcontractor, and the total price or hourly rates used in preparing an estimated cost for the subcontractor’s services. The City, in its sole discretion, may grant or deny the request.
22.2 NGS will be responsible for the quality of any subcontractor’s work. Every subcontract or agreement of any kind entered into between NGS and any subcontractor (or between any subcontractor and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 4980 entered into between the City of Santa Monica and NGS on^^____________________.
23. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
24. Venue and Jurisdiction. The City and NGS 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.
25. 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. //
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26. Execution in Counterparts. This Agreement may be executed in counterparts with the same effect as if both parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single Agreement. Any signature to this Agreement transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature).
27. 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:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ______________________________
RICK COLE
City Manager
NGS Corporation
#VENDOR
By: ________________________________
DocuSign Envelope ID: FA8C40D3-3291-41D5-898E-F18B67E9B88F 1/24/2023
DOUGLAS SLOAN
City Attorney
2/8/2023
John Shield
Field Service Manager
Natural Gas Systems, Inc.
David White
City Manager
2/13/2023 2/10/2023
City Clerk
Denise Anderson-Warren
Exhibit A
Scope of Services
Vendor shall provide all inspections, scheduled maintenance, and emergency repair services as outlined in the "J-W Power Company Maintenance and Instruction Manual" for all Ariel and Fuel Maker Compressors and all CNG related equipment located at two (2) CNG fueling stations at the City of Santa Monica's City Yards 2500 Michigan Ave., Santa Monica, CA 90404, as requested by the City of Santa Monica's Fleet Management Division, as set forth in NGS’ quote, which is attached hereto and incorporated herein by this reference.
Service is to be provided weekly and billed monthly.
Services to be provided include but are not limited to:
• Check all equipment on a weekly basis
• Check for leaks and vibrations
• Inspect all time fill posts, e-stops, dispensers, hoses, all equipment in the compressor rooms, and dryers (on an as-needed basis)
• Change filters every 2,000 hours or as needed
• Dispose of waste from weekly maintenance of the CNG compressors • Emergency callouts 24/7 - Must be able to respond within 30 minutes of call time Hours of Work: The City regular business hours are Monday through Friday, 5:30 A.M. to 6:00 P.M. All work shall be coordinated with the designated City Representative. All work is to be done during the City’s shop regular business hours except where corrective maintenance or service is specifically requested by the designated City Representative with overtime approval provided prior to execution of any overtime.
DocuSign Envelope ID: FA8C40D3-3291-41D5-898E-F18B67E9B88F Exhibit B
Budget
The City will pay for services rendered by NGS in accordance with their quoted pricing, which is incorporated herein for reference, in an amount not to exceed $246,000 over the Term of the Agreement.
Line Item Description QTY
Unit Of
Measure Unit Cost Total
Scheduled Maintenance/Inspections
1 Monthly Rate 1 Ea $2,200.00 $2,200.00
Unscheduled Maintenance (Emergency Callouts/Repairs)
2 Hourly Labor Rate Per
Technician 1 Ea $100.00 $100.00
3 Emergency (After Hours)
Rate Per Technician 1 Ea $150.00 $150.00
4 Double-Time (After 12-
Hour Day) Rate Per
Technician 1 Ea $200.00 $200.00
5 Travel Time (Portal to
Portal) 1 Ea $200.00 $200.00
6 Additional Miscellaneous
Fees and Charges Not
Listed Above (If Indicated
Please Describe In The
Comment Section) 1 Lump Sum $0.00 $0.00
Renewal Terms
Renewal Year Percentage Increase
1 0%
2 2%
3 0%
4 2%
Payment Terms: Net 30
DocuSign Envelope ID: FA8C40D3-3291-41D5-898E-F18B67E9B88F Exhibit C
Contractual Services Agreement Insurance Requirements
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 CGL 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 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 broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to the broader coverage or 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 Contractor including materials, parts, or equipment furnished in connection with such work or operations. CGL 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, or if not available, through DocuSign Envelope ID: FA8C40D3-3291-41D5-898E-F18B67E9B88F the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, the Contractor’s insurance shall be primary coverage as least as broad as Insurance Services Office 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 the Contractor’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: 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.
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 the Contractor 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 name insured or the 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: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 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 the Contractor’s obligation to provide DocuSign Envelope ID: FA8C40D3-3291-41D5-898E-F18B67E9B88F 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.
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.
DocuSign Envelope ID: FA8C40D3-3291-41D5-898E-F18B67E9B88F