HomeMy WebLinkAbout07-05-2017 Operations Committee Agenda Packet Orange County Sanitation District Wednesday, July 5, 2017
Regular Meeting of the a 5:00 P.M.
OPERATIONS COMMITTEE Administration Building
Board Room
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
AGENDA
CALL TO ORDER
PLEDGE OF ALLEGIANCE
DECLARATION OF QUORUM: Clerk of the Board
PUBLIC COMMENTS: If you wish to address the Committee on any item,please complete a Speaker's
Form (located at the table outside of the Board Room) and submit it to the Clerk of the Board or notify the
Clerk of the Board the item number on which you want to speak. Speakers will be recognized by the Chairman
and are requested to limit comments to three minutes.
REPORTS: The Committee Chair and the General Manager may present verbal reports on miscellaneous
matters of general interest to the Committee Members. These reports are for information only and require no
action by the Committee.
CONSENT CALENDAR: The Consent Calendar Items are considered routine and will be enacted, by
the Committee, after one motion, without discussion. Any items withdrawn from the Consent Calendar for
separate discussion will be considered in the regular order of business.
1. APPROVAL OF MINUTES (Clerk of the Board)
RECOMMENDATION: Approve Minutes of the June 7, 2017 Operations Committee
Meeting.
2. DIGESTER CLEANING CONTRACT (Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a Service Contract with Synagro-WWT, Inc., the lowest responsive
and responsible bidder, for Digester Cleaning, Specification No.
S-2017-82413D,for an 18-month period beginning September 1, 2017 through
February 28, 2019, for an amount not to exceed $3,953,958 with four (4)
additional 18-month renewal options; and
07105/2017 Operations Comm@tee Agenda Page 1 of 4
B. Approve a contingency of$395,396 (10%) aggregately per contract period.
3. LIGHT DUTY TRUCK COOPERATIVE PROCUREMENT WITH NATIONAL AUTO
FLEET GROUP (Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
Approve the purchase of four light duty trucks using the National Joint Powers
Alliance cooperative Contract Number 120716-NAF with National Auto Fleet Group
for a total cost of $148,000 in accordance with Ordinance No. OCSD-47,
Section 2.03(B), Cooperative Purchases.
4. PREVENTATIVE MAINTENANCE OF STANDBY EMERGENCY ELECTRICAL
GENERATORS, SPECIFICATION NO. S-2017-822BD (Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a Service Contract with Valley Power Services, Inc. for the annual
preventative maintenance of standby electrical generators located at Orange
County Sanitation District Plant Nos. 1 & 2 and Pump Stations, Specification
No. S-2017-82213D, for the period September 1, 2017 through
August 31, 2019, for an amount not to exceed of $148,500, with two (2)
two-year renewal options; and
B. Approve a contingency of$29,700 (20%) per two-year period.
5. PURCHASE OF SODIUM HYPOCHLORITE, SPECIFICATION NO. C-2017-853BD
(Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Award an Agreement to JCI Jones Chemicals, Inc.for the purchase of sodium
hypochlorite (bleach), Specification No. C-2017-853BD, for the period
September 1, 2017 through August 31, 2018, for a unit price of $0.51/gallon
delivered, plus applicable sales tax, for an estimated annual amount of
$626,726.25, with four (4) one-year renewal options; and
B. Approve a (10%) unit price contingency.
07105/2017 Operations Comm@tee Agenda Page 2 of 4
6. REPAIR & REFURBISHMENT OF TWO CENTRAL GENERATION ELECTRICAL
GENERATORS, SPECIFICATION NO. S-2017-85OBD (Ed Torres)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a Service Contract to R.A. Reed Electric Company, the lowest
responsive and responsible bidder,for Repair& Refurbishment of two Central
Generation Electrical Generators, Specification No. S-2017-85013D, for an
amount not to exceed $424,538.62; and
B. Approve a contingency of$84,908 (20%).
7. STORMWATER MASTER PLAN — PROJECT NO. PS16-01 (Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve a Professional Services Agreement with Michael Baker International,
Inc. to provide engineering services for the Stormwater Master Plan, Project
No. PS16-01, for an amount not to exceed $715,300; and
B. Approve a contingency of$71,530 (10%).
8. CEQA PLAN 2017 — MASTER CONTRACT NO. CEQA PLAN2017-00
(Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve annual Professional Services Agreements with HDR
Engineering, Inc.; Michael Baker International; Helix Environmental
Planning, Inc.; ESA; AECOM; and LSA; Master Contract No. CEQA
PLAN2017-00, with a maximum annual fiscal year contract limitation not to
exceed $400,000 for each Professional Services Agreement; and
B. Approve two additional one-year optional extensions.
NON-CONSENT CALENDAR:
9. SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1, PROJECT
NO. P1-101 (Rob Thompson)
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a contingency increase of $5,718,000 (4.5%) to the construction contract
with W.M. Lyles Company for Sludge Dewatering and Odor Control at Plant No. 1,
Project No. P1-101, for a total contingency amount of$9,518,000 (7.5%).
07105/2017 Operations Comm@tee Agenda Page 3 of 4
INFORMATION ITEMS:
10. HUMAN RESOURCES — WORKFORCE PLANNING, SAFETY AND SECURITY
(Celia Chandler)
DEPARTMENT HEAD REPORTS:
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS,
IF ANY:
ADJOURNMENT:
The next Operations Committee meeting is scheduled for Wednesday, September 6, 2017
at 5:00 p.m.
Accommodations for the Disabled: Meeting Rooms are wheelchair accessible. If you require any special disability
related accommodations, please contact the Orange County Sanitation District Clerk of the Board's office at
(714) 593-7433 at least 72 hours prior to the scheduled meeting. Requests must specify the nature of the disability
and the type of accommodation requested.
Agenda Posting, In accordance with the requirements of Califomia Government Code Section 54954.2,this agenda
has been posted outside the main gate of the Sanitation District's Administration Building located at 10844 Ellis Avenue,
Fountain Valley,California,not less than 72 hours prior to the meeting date and Ume above. All public records relating
to each agenda item,including any public records distributed less than 72 hours prior to the meefing to all,or a majority
of the Board of Directors,are available for public inspection in the office of the Clerk of the Board.
Aaenda Description: The agenda provides a brief general description of each item of business to be considered or
discussed. The recommended action does not indicate what action will be taken. The Board of Directors may take
any action which is deemed appropriate.
NOTICE TO DIRECTORS: To place items on the agenda for the Committee Meeting, items must be submitted to the
Clerk of the Board 14 days before the meeting.
Kelly A. Lore
Clerk of the Board
(714)593-7433
kloreitbocsd.com
For any questions on the agenda,Committee members may contact staff at:
General Manager Jim Herberg (714)593-7300 iherberg(glocsd.com
Assistant General Manager Bob Ghirelli (714)593-7400 nahirelliRDocsd.cem
Director of Engineering Rob Thompson (714)593-7310 rlhompson(Momd.com
Director of Environmental Services Jim Colston (714)593-7450 icolstorutbomd.com
Director of Operations&Maintenance Ed Torres 714 593-7080 etomes ocsd.com
07/05/2017 Operations Committee Agenda Page 4 of 4
ITEM NO. 1
MINUTES OF THE
OPERATIONS COMMITTEE
Orange County Sanitation District
Wednesday, June 7, 2017, 5:00 p.m.
A regular meeting of the Operations Committee was called to order by Committee Chair
Withers on Wednesday, June 7, 2017 at 5:04 p.m. in the Administration Building.
Director Yarc led the Flag Salute.
A quorum was declared present, as follows:
COMMITTEE MEMBERS PRESENT: STAFF PRESENT:
John Withers, Chair Jim Herberg, General Manager
Ellery Deaton, Vice-Chair Bob Ghirelli, Assistant General Manager
Denise Barnes Celia Chandler, Director of Human Resources
Kris Beard (Alternate) Jim Colston, Director of Environmental Services
Allan Bernstein Rob Thompson, Director of Engineering
Robert Collacott Ed Torres, Director of Operations and Maintenance
Richard Murphy Lorenzo Tyner, Director of Finance &
Tim Shaw Administrative Services
Fred Smith Tina Knapp, Deputy Clerk of the Board
Michelle Steel Greg Blakeley
Mariellen Yarc Jennifer Cabral
Greg Seboum, Board Chair Ron Coss
David Shawver, Board Vice-Chair Don Cutler
Anne Marie Feery
COMMITTEE MEMBERS ABSENT: Lisa Frigo
Phil Hawkins Alfredo Garcia
Mike Lahlou
Mark Manzo
Tom Meregillano
Kathy Millea
Jeff Mohr
Ddaze Phuong
Mike White
Eros Yong
OTHERS PRESENT:
Brad Hogin, General Counsel
Patrick Sheilds, IRWD
PUBLIC COMMENTS:
None.
06/07/2017 Operations Committee Minutes Page 1 &6
REPORT OF COMMITTEE CHAIR:
Committee Chair Withers did not provide a report.
REPORT OF GENERAL MANAGER:
General Manager Jim Herberg did not provide a report.
CONSENT CALENDAR:
Late Communication pertaining to Item Nos. 3 and 4 was provided to the Committee in
the blue folders.
1. APPROVAL OF MINUTES (Clerk of the Board)
MOVED. SECONDED. and DULY CARRIED TO: Approve Minutes of the
May 3, 2017 Operations Committee Meeting.
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, F. Smith, Steel, Yarc, and Withers
NOES: None
ABSTENTIONS: Shawver
ABSENT: Hawkins
2. SEISMIC HAZARD EVALUATION AT PLANT NOS. 1 AND 2, PROJECT NO.
PS1 5-06 (Rob Thompson)
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a Professional Services Agreement with Geosyntec Consultants
to provide engineering services for the Seismic Hazard Evaluation at Plant
Nos. 1 and 2, Project No. PS15-06, for an amount not to exceed
$2,578,028; and
B. Approve a contingency of$257,800 (10%).
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, Shawver, F. Smith, Steel, Yarc,
and Withers
NOES: None
ABSTENTIONS: None
ABSENT: Hawkins
06/07/2017 Operations Committee Minutes Page 2 of 6
3. CENTRAL GENERATION ENGINES AUTOMATIC BALANCING ANALYZERS
(Ed Torres)
Provided as Late Communication, the last line of the paragraph in the Financial
Considerations section should read, "(Line item: Small Capital Projects, Section 8,
Page 86).".
MOVED. SECONDED, and DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a sole source purchase order to Windrock, Inc. for the purchase
and installation of two Windrock Auto Balance analyzers, plus associated
equipment, on two central generation engines, one at each plant, for a total
amount not to exceed $501,376; and
B. Approve a contingency of$50,137 (10%).
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, Shawver, F. Smith, Steel, Yarc,
and Withers
NOES: None
ABSTENTIONS: None
ABSENT: Hawkins
4. CENTRAL GENERATION FACILITIES OIL CENTRIFUGE HEATER AND
CONTROLS REPLACEMENT (Ed Torres)
Provided as Late Communication, the last line of the paragraph in the Financial
Considerations section should read, "(Line item: Small Capital Projects, Section 8,
Page 86).".
MOVED. SECONDED, and DULY CARRIED TO:
A. Approve a Sole Source Purchase Order to replace and install four new Alfa
Laval Central Generation Centrifuge Heaters and Controls at Plant Nos.
1 and 2 Central Generation facilities, for a total amount not to exceed
$111,082; and
B. Approve a contingency of$16,662 (15%).
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, Shawver, F. Smith, Steel, Yarc,
and Withers
NOES: None
ABSTENTIONS: None
ABSENT: Hawkins
06/07/2017 Operations committee Minutes Page 3 of 6
5. BIOSOLIDS MANAGEMENT CONTRACT RENEWAL — TULE RANCH
(Jim Colston)
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Authorize the five-year contract renewal with Tule Ranch, Amendment No.
2, to manage Orange County Sanitation District's biosolids from
Reclamation Plant No. 1 and Treatment Plant No. 2 for land application
and/or landfill disposal (Specification No. S-2011-51313D), for the period
commencing November 1, 2017 through October 31, 2022, for a unit price
increase of $2.50, for a new unit price of$57 per ton, for a total estimated
annual amount not to exceed $9,000,000; and
B. Approve an aggregate annual unit price contingency of 5%.
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, Shawver, F. Smith, Steel, Yarc,
and Withers
NOES: None
ABSTENTIONS: None
ABSENT: Hawkins
NON-CONSENT CALENDAR:
6. 2017 AUDIT REPORT OF ORANGE COUNTY SANITATION DISTRICT SEWER
SYSTEM MANAGEMENT PLAN (Jim Colston)
Director of Environmental Services Jim Colston provided an informative
PowerPoint presentation that encompassed both Item Nos. 6 and 7. Mr. Colston's
presentation included an overview of the Sewer System Management Plan, auditor
statements regarding the Plan, audit findings, opportunities for improvement, and
changes made to the Plan based on the audit. Item Nos. 6 and 7 were voted on in
one action.
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to: Receive and file the Final WDR/SSMP Audit Report dated
May 19, 2017.
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, Shawver, F. Smith, Steel, Yarc,
and Withers
NOES: None
ABSTENTIONS: None
ABSENT: Hawkins
06/07/2017 Operations committee Minutes Page 4 of 6
7. SEWER SYSTEM MANAGEMENT PLAN UPDATE (Jim Colston)
MOVED. SECONDED. and DULY CARRIED TO: Recommend to the Board of
Directors to: Approve and file the Orange County Sanitation District's Sewer
System Management Plan, dated May 9, 2017.
AYES: Barnes, Beard (Alternate), Bernstein, Collacott, Deaton,
Murphy, Seboum, Shaw, Shawver, F. Smith, Steel, Yarc,
and Withers
NOES: None
ABSTENTIONS: None
ABSENT: Hawkins
INFORMATION ITEMS:
8. LABORATORY, MONITORING, AND COMPLIANCE DIVISION UPDATE
(Jim Colston)
Director of Environmental Services Jim Colston introduced Ron Coss, Laboratory,
Monitoring, and Compliance Manager, who provided an informative PowerPoint
presentation that included an overview of the division,the reports generated by the
division, laboratory workload, laboratory workload by customer, productivity and
budget, results of a recent survey conducted regarding division management and
goals, and laboratory accreditation.A suggestion was made to publish ocean water
quality testing results on OCSD's website.
9. 2017-18 BUDGET UPDATE PRESENTATION (Lorenzo Tyner)
Director of Finance & Administrative Services Lorenzo Tyner introduced this item
and indicated that the Budget Update Fiscal Year 2017-18 document is provided
as Late Communication in the Directors' blue folders. Mr. Tyner introduced
Controller Mike White,who gave a PowerPoint presentation that provided a budget
update summary, major revenue components (fees/charges and general income),
user fees and the relationship to revenue, comparison of annual single family
residential rates, general income, outlay categories, expense summary, four
distinct types of the Capital Improvement Program (CIP), CIP ten-year annual
outlays, and debt issuances (no additional issuances planned).
Director Steel departed the meeting at 5:30 p.m.
DEPARTMENT HEAD REPORTS:
None.
06/07/2017 Operations committee Minutes Page 5 of 6
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS
IF ANY:
None.
ADJOURNMENT
Committee Chair Withers declared the meeting adjourned at 6:00 p.m. to the next
scheduled meeting of Wednesday, July 5, 2017 at 5:00 p.m.
Submitted by,
Tina Knapp, CIVIC
Deputy Clerk of the Board
06/07/2017 Operations committee Minutes Page 6 of 6
OPERATIONS COMMITTEE Meeting Date Ta Bd.of Dir.
07/05/17 07/26/17
AGENDA REPORT IbernNumber Item Number
z
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations and Maintenance
SUBJECT: DIGESTER CLEANING CONTRACT
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Service Contract with Synagro-W WT, Inc., the lowest responsive and
responsible bidder, for Digester Cleaning, Specification No. S-2017-82413D, for an
18-month period beginning September 1, 2017 through February 28, 2019, for an
amount not to exceed $3,953,958 with four (4) additional 18-month renewal
options; and
B. Approve a contingency of$395,396 (10%) aggregately per contract period.
BACKGROUND
Digesters are used to stabilize organic solids from primary and secondary treatment
processes for ultimate reuse as well as to produce digester gas to power the Orange
County Sanitation District's (Sanitation District) Central Generation facilities. Staff
periodically cleans the digesters to remove the accumulated grit and rags that inhibit their
performance. The previous digester-cleaning contract expired in November 2016. Staff
recommends Synagro-W WT, Inc. be awarded the digester cleaning contract as the lowest
responsive and responsible bidder. Approving the recommendation will allow the
Sanitation District to maintain its current goal of completing four digester cleanings every
18 months.
RELEVANT STANDARDS
• Support Biosolids Management Program
• Efficiency efforts reduce the cost to provide the current service level or standard
• Maintain a proactive asset management program
PROBLEM
Periodic digester cleaning to remove materials that build up over time is required to
maintain process capacity. Additionally, it provides an opportunity to assess the structural
and mechanical conditions of the digesters after cleaning.
Page 1 of 3
PROPOSED SOLUTION
Approval of a digester cleaning contract with Synagro-WWT, Inc. to complete the
necessary work.
TIMING CONCERNS
Timely approval of the contract will enable staff to stay on track with the cleaning
schedule.
RAMIFICATIONS OF NOT TAKING ACTION
Poorer performance of the digesters and elevated future rehabilitation costs.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
This Contract was competitively bid with 14 prospective bidders. Six bid packages were
received by the Sanitation District and are listed below.
Bidder Total Cost
NRC Environmental (Non-Responsive) $2,624,362
Synagro-WWT, Inc. $3,953,958
Wastewater Solids $5,108,995
American Process $6,438,219
Pipe and Plant $8,898,672
National Plant $15,149,000
The bids received are based upon a unit cost per dry ton of material removed and
disposed of, as well as equipment mobilization and demobilization.
The bid from NRC Environmental was deemed Non-Responsive as it did not provide any
valid references as required by the Notice Inviting Bid (NIB) for Specification
No. S-2017-824BD, to demonstrate its capabilities to provide digester cleaning services.
CECIA
N/A
Page 2 of 3
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted in the Division 8701880 budget (Line item:
Repairs & Maintenance, Section 6 pages 92 and 96).
Date of Approval Contract Amount Contingency
07/26/2017 $3,953,958 $395,396
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (wwwocsd.com) with the
complete agenda package and attachments:
Digester Cleaning Services Contract
Page 3 d 3
SERVICE CONTRACT
Digester Cleaning Services
Specification No. S-2017-824BD
THIS CONTRACT is made and entered into as of the date fully executed below, by and between
Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue,
Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and Synagro-WWT, Inc.
with a principal place of business at 3845 Bithell Lane,Suisun City, CA 94585(hereinafter referred
to as"Service Provider") collectively referred to as the "Parties".
WITNESETH
WHEREAS, OCSD desires to retain the services of Service Provider for Digester Cleaning
Services"Services"; and
WHEREAS, OCSD has chosen Service Provider to conduct Services in accordance with
Ordinance No. OCSD-47; and
WHEREAS, on July 26, 2017, the Board of Directors of OCSD, by minute order, authorized
execution of this Contract between OCSD,and Service Provider; and
WHEREAS, Service Provider is qualified by rtue of experience, training, and education and
expertise to accomplish such Services,
NOW THEREFORE, in consideration of the pro nd mutual benefits exchanged between
the Parties, it is mutually agreed as follow
1. Introduction
1.1 This Contract and all exhibits hereto called a "Contract") is made by OCSD and
Service Provider. The Terms and Conditions herein exclusively govern the purchase of Services
as described in the Scope of Work, attached hereto and incorporated herein by reference as
Exhibit"A".
1.2 Exhibits to this Contract are incorporated by reference a ads a part of this Contract
as though fully set forth at length herein. Exhibits to this C ct are as follows in order of
precedence:
Exhibit"A" Scope of Work including all Appendices
Exhibit"B" Bid from Service Provider
Exhibit"C" Acknowledgement of Insurance Requirements
Exhibit"D" OCSD Safety Standards
Exhibit"E-J" Not Used
Exhibit X' Not Used (Addendum 3.17.17)
Exhibit"L" Not Used (Addendum 3.17.17)
1.3 In the event of any conflict or inconsistency between the provisions of this Contract and
any of the provisions of the exhibits hereto, the provisions of this Contract shall in all respects
govern and control.
1.4 The provisions of this Contract may be amended or waived only by a writing executed by
authorized representatives of both Parties hereto.
Orange County Sanitation District 1 of 9 Specification No. S-2017-824BD
1.5 The various headings in this Contract are inserted for convenience only and shall not affect
the meaning or interpretation of this Contract or any Paragraph or provision hereof.
1.6 The term "days", when used in the Contract, shall mean calendar days, unless otherwise
noted as business days.
1.7 OCSD holidays (non-working days) are as follows: New Year's Day, Lincoln's Birthday,
President's Day, Memorial Day, Independence Day, Labor Day,Veterans Day,Thanksgiving Day,
Day after Thanksgiving, Christmas Eve, and Christmas Day.
1.8 The term "work days", when used in this Contract, shall be as defined in Exhibit"A".
1.9 Service Provider shall provide OCSD with all required premiums and/or overtime work at
no charge beyond the price provided under"Compensation" below.
1.10 Except as expressly provided otherwise, OCSD accepts no liability for any expenses,
losses, or action incurred or undertaken by Service Provider as a result of work performed in
anticipation of purchases of said services by OCSD.
2. Compensation Compensation to be paid by OCSD to Service Provider for Services
under this Contract for a firm fixed price not to exceed the total amount of Three Million Nine
Hundred Fifty-Three Thousand Nine Hundred Fifty-Eight and 00100 Dollars ($3,953,958.00).
3. California Department of Industrial Relations (DIR)Registration and Record of
Wages
3.1 To the extent Service Provider's eAployees and/or its Subcontractors who will perform Work
during the design and preconstruction phases of a construction contract for which Prevailing
Wage Determinations have been issued by the DIR and as more specifically defined under
Labor Code Section 1720 at seq, Service Provider and its Subcontractors shall comply with
the registration requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section
1771.4, the Work is subject to compliance monitoring and enforcement by the DIR.
3.2 The Service Provider and its Subcontractors shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, aA shall submit payroll records
to the Labor Commissioner pursuant to Labor Code 17 . (a)(3). Penalties for non-
compliance with the requirements of Section 1776 may be Muucted from progress payments
per Section 1776.
3.3 Pursuant to Labor Code Section 1776, the Service Provider and its Subcontractors shall
furnish a copy of all certified payroll records to OCSD and/or general public upon request,
provided the public request is made through OCSD, the Division of Apprenticeship Standards
or the Division of Labor Enforcement of the Department of Industrial Relations.
3.4 The Service Provider and its Subcontractors shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulation Section 16461(e).
4. Payments Payments shall be made upon approval by OCSD Project Manager, or his
designee, of invoices submitted for Services completed as described in Exhibit "A". Service
Provider shall submit monthly invoices including all deliverables per Exhibit"A",Section 4. OCSD,
at its sole discretion, shall be the determining party as to whether the Services have been
satisfactorily completed.
Orange County Sanitation District 2 of 9 Specification No. S-2017-824BD
5. Invoices
5.1 OCSD shall pay within 30 days of completion and receipt and approval by OCSD Project
Manager of an itemized invoice, in a form acceptable to OCSD to enable audit of the charges
thereon. Invoices shall include the Purchase Order Number.
5.2 Invoices shall be emailed by Service Provider to OCSD Accounts Payable at
APStaff(a)OCSD.com and reference the following in the subject line: "INVOICE", the Purchase
Order number, the Project Manager and Specification No. S-2017-824BD.
6. Audit Rights Service Provider agrees that, during the term of this Contract and for a
period of three(3)years after its termination, OCSD shall have access to and the right to examine
any directly pertinent books, documents, and records of Service Provider relating to the invoices
submitted by Service Provider pursuant to this Contract.
7. Scope of Work Subject to the terms of this Contract, Service Provider shall perform the
Services attached hereto alow rporated herein Exhibit'W'. Service Provider shall perform said
Services in accordance with generally accepted industry and professional standards.
6. Modifications to Scope of Work Requests for modifications to the Scope of Work
hereunder can be made by OCSD at any tme. All modifications must be made in writing and
signed by both Parties. I'll
9. Contract Term The Services provided under this Contract shall be completed within
eighteen months (1 112) years from the effective date of the notice to proceed. (Addendum
3.17.17)
10. Renewals 1W- IS7
10.1 OCSD may exercise the option to renew the Contract for up to four (4) eighteen month
periods based upon the criteria set forth in Exhibit "A", under the terms and conditions
contained herein. OCSD shall make no obligation to renew nor give reason if it elects not to
renew. (Addendum 3.17.17)
10.2 Renewals may be made through the OCSD Purchase Ord ores .
11. Termination
11.1 OCSD reserves the right to terminate this Contract for its convenience, with or without
cause, in whole or in part, at any time, by written notice from OCSD of intent to terminate. Upon
receipt of a termination notice, Service Provider shall immediately discontinue all work under this
Contract(unless the notice directs otherwise). OCSD shall thereafter, within thirty(30)days, pay
Service Provider for work performed (cost and fee) to the date of termination. Service Provider
expressly waives any claim to receive anticipated profits to be earned during the uncompleted
portion of this Contract. Such notice of termination shall terminate this Contract and release
OCSD from any further fee, cost or claim hereunder by Service Provider other than for work
performed to the date of termination.
11.2 OCSD reserves the right to terminate this Contract immediately upon OCSD's
determination that Service Provider is not meeting specification requirements, if the level of
service is inadequate, or any other default of this Contract.
11.3 OCSD may also immediately cancel for default of this Contract in whole or in part by
written notice to Service Provider:
Orange County Sanitation District 3 of 9 Specification No. S-2017-824BD
• if Service Provider becomes insolvent or files a petition under the Bankruptcy Act; or
• if Service Provider sells its business; or
• if Service Provider breaches any of the terms of this Contract; or
• if total amount of compensation exceeds the amount authorized under this Contract.
11.4 All OCSD property in the possession or control of Service Provider shall be returned by
Service Provider to OCSD upon demand, or at the termination of this Contract, whichever occurs
first.
12. Insurance Service Provider and all subcontractors shall purchase and maintain,
throughout the life of this Contract and any periods of warranty or extensions, insurance in
amounts equal to the requirements set forth in the signed Acknowledgement of Insurance
Requirements (attached hereto and incorporated herein as Exhibit "C"). Service Provider shall
not commence work under this Contract until all required insurance is obtained in a form
acceptable to OCSD, nor shall Service Provider allow any subcontractor to commence service
pursuant to a subcontract until all insurance required of the subcontractor has been obtained.
Failure to maintain required insurance coverage shall result in termination of this Contract.
13. Bonds Not Used. (Addendum 3.17.17)
14. Indemnification and Hold Harmless Provision Service Provider shall assume all
responsibility for damages to property and/or injuries to persons,including accidental death,which
may arise out of or be caused by Service Provider's services under this Contract, or by its
subcontractor or by anyone directly or indirectly employed by Service Provider, and whether such
damage or injury shall accrue or be discovered before or after the termination of the Contract.
Except as to the sole active negligence of or willful misconduct of OCSD, Service Provider shall
indemnify, protect, defend and hold harmless OCSD, its elected and appointed officials, officers,
agents and employees, from and against any and all claims, liabilities, damages or expenses of
any nature, including attorneys'fees: (a)for injury to or death of any person or damage to property
or interference with the use of property, arising out of or in connection with Service Provider's
performance under the Contract,and/or(b)on account of use of any copyrighted or uncopyrighted
material, composition, or process, or any patented or unpatented invention, article or appliance,
furnished or used under the Contract, and/or (c)on account of any goods and services provided
under this Contract. This indemnification provision shall apply to any acts or omissions, willful
misconduct, or negligent misconduct, whether active or passive, on the part of Service Provider
of or anyone employed by or working under Service Provider. To the maximum extent permitted
by law, Service Provider's duty to defend shall apply whether or not such claims, allegations,
lawsuits, or proceedings have merit or are meritless, or which involve claims or allegations that
any of the parties to be defended were actively, passively, or concurrently negligent, or which
otherwise assert that the parties to be defended are responsible, in whole or in part,for any loss,
damage, or injury. Service Provider agrees to provide this defense immediately upon written
notice from OCSD, and with well qualified, adequately insured, and experienced legal counsel
acceptable to OCSD.
15. Safety Standards and Human Resources (HR) Policies OCSD requires all contractors
and Service Providers to follow and ensure their employees and all subcontractors follow all State
and Federal regulations as well as OCSD requirements while working at OCSD locations. If
during the course of a contract it is discovered that OCSD policies, safety manuals, or contracts
do not comply with State or Federal regulations then the Service Provider is required to follow the
most stringent regulatory requirement at no cost to OCSD. Service Provider and all their
employees and subcontractors,shall adhere to all applicable OCSD Safety Standards and Human
Resources Policies found at: OCSD.com, "Document Central", under the heading "About Us".
Orange County Sanitation District 4 of 9 Specification No. S-2017-824BD
OCSD's Safety Standards and Human Resource Policies are hereby incorporated by reference
as though fully set forth herein in Exhibit"D".
16. Warranties In addition to the Warranties stated in Exhibit"A", the following shall apply:
16.1 Manufacturer's standard warranty shall apply. All manufacturer warranties will begin at
date of completion of this Contract.
16.2 Service Provider's warranty: If, within the 12-month period following completion of its
Services, OCSD informs Service Provider that any part of the Services fails to meet the standards
required under this Contract, Service Provider shall, within the time agreed to by OCSD and
Service Provider, take all such actions as are necessary to correct or complete the noted
deficiency(ies) at Service Provider's sole expense.
17. Performance Time is of the essence in the performance of this Contract and the
provisions hereof.
16. Force Maieure Neither party shall be liable for delays caused by accident, flood, acts of
God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said
party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force
Majeure condition may be rescheduled by mutual consent or may be eliminated from the Contract.
19. Freight (F.O.B. Destinati011f/Service Provider assumes full responsibility for all
transportation, transportation scheduling, packing, handling, insurance, and other services
associated with delivery of all products deemed necessary under this Contract.
20. Familiarity with Work By executing this Contract, Service Provider warrants that: 1) it
has investigated the work to be performed; 2) it has investigated the site of the work and is aware
of all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work
under this Contract. Should Service Provider discover any latent or unknown conditions materially
differing from those inherent in the work or as represented by OCSD, it shall immediately inform
OCSD of this and shall not proceed, except at Service Provider's rislk, until written instructions are
received from OCSD. `
21. Regulatory Requirements Service Provider shall perform all work under this Contract in
strict conformance with applicable federal, state, and local regulatory requirements including, but
not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and California
Water Codes Division 2.
22. Licenses, Permits. Ordinances and Regulations Service Provider represents and
warrants to OCSD that it has obtained all licenses, permits, qualification and approvals of
whatever nature that are legally required to engage in this work. Any and all fees required by
State, County, City and/or municipal laws, codes and/or tariffs that pertain to work performed
under the terms of this Contract will be paid by Service Provider.
23. Applicable Laws and Regulations Service Provider shall comply with all applicable
federal, state, and local laws, rules, and regulations. Service Provider also agrees to indemnify
and hold harmless from any and all damages and liabilities assessed against OCSD as a result
of Service Provider's noncompliance therewith. Any permission required by law to be included
herein shall be deemed included as a part of this Contract whether or not specifically referenced.
24. Contractor's Employees Compensation
24.1 Davis-Bacon Act— Not Used.
Orange County Sanitation District 5 of 9 Specification No. S-2017-824BD
24.2 General Prevailing Rate — OCSD has been advised by the State of California Director of
Industrial Relations of its determination of the general prevailing rate of per diem wages and the
general prevailing rate for legal holiday and overtime work in the locality in which the work is to
be performed for each craft or type of work needed to execute this Contract, and copies of the
same are on file in the office of the engineer of OCSD. The Service Provider agrees that not less
than said prevailing rates shall be paid to workers employed on this Contract as required by Labor
Code Section 1774 of the State of California. Per California Labor Code 1773.2, OCSD will have
on file copies of the prevailing rate of per diem wages at its principal office and at each job site,
which shall be made available to any interested party upon request.
24.3 Forfeiture For Violation - Service Provider shall, as a penalty to OCSD, forfeit fifty, dollars
($50.00) for each calendar day or portion thereof for each worker paid (either by the Service
Provider or any subcontractor under it) less than the prevailing rate of per diem wages as set by
the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor
Code for the work provided for in this Contract, all in accordance with Section 1775 of the Labor
Code of the State of California.
24.4 Apprentices — Sections 1777.5, 1777.6, 1777.7 of the Labor Code of the State of
California, regarding the employment of apprentices are applicable to this Contract and the
Service Provider shall comply therewith if the prime Contract involves thirty thousand dollars
($30,000.00)or more or twenty (20)working days or more; or if contracts of specialty contractors
not bidding for work through the general or prime Contractor are two thousand dollars($2,000.00)
or more or five (5)working days or more.
24.5 Workday — In the performance of this Contract, not more than eight (8) hours shall
constitute a day's work, and the Service Provider shall not require more than eight (8) hours of
labor in a day from any person employed by him hereunder except as provided in General
Prevailing Rate above. Service Provider shall conform to Article 3, Chapter 1, Part 7 (Section
1810 at seq.) of the Labor Code of the State of California and shall forfeit to OCSD as a penalty,
the sum of twenty five dollars ($25.00)for each worker employed in the execution of this Contract
by Service Provider or any subcontractor for each calendar day during which any worker is
required or permitted to labor more than eight (8) hours in any one calendar day and forty (40)
hours in any one week in violation of said Article. Service Provider shall keep an accurate record
showing the name and actual hours worked each calendar day an ach calendar week by each
worker employed by Service Provider in connection with the pro'
24.6 Record of Wages: Inspection - Service Provider agrees to maintain accurate payroll
records showing the name, address, social security number,work classification,straight-time and
overtime hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by it in connection with the project
and agrees to require that each of its subcontractors do the same. All payroll records shall be
certified as accurate by the applicable Service Provider or subcontractor or its agent having
authority over such matters. Service Provider further agrees that its payroll records and those of
its subcontractors shall be available to the employee or employee's representative, the Division
of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply
with all of the provisions of Labor Code Section 1776, in general. Penalties for non-compliance
with the requirements of Section 1776 may be deducted from project payments per the
requirements of Section 1776.
25. South Coast Air Quality Management District's (SCAQMD) Requirements It is
Service Provider's responsibility that all equipment furnished and installed be in accordance with
the latest rules and regulations of the South Coast Air Quality Management District (SCAQMD).
Orange County Sanitation District 6 of 9 Specification No. S-2017-824BD
All contract work practices, which may have associated emissions such as sandblasting, open
field spray painting or demolition of asbestos containing components or structures, shall comply
with the appropriate rules and regulations of the SCAQMD.
26. Governing Law This Contract shall be governed by and interpreted under the laws of the
State of California and the Parties submit to jurisdiction in Orange County, in the event any action
is brought in connection with this Contract or the performance thereof.
27. Breach The waiver of either party of any breach or violation of, or default under, any
provision of this Contract, shall not be deemed a continuing waiver by such party of any other
provision or of any subsequent breach or violation of this Contract or default thereunder. Any
breach by Service Provider to which OCSD does not object shall not operate as a waiver of
OCSD's rights to seek remedies available to it for any subsequent breach.
28. Remedies In addition to other remedies available in law or equity, if the Service Provider
fails to make delivery of the goods or Services or repudiates its obligations under this Contract,
or if OCSD rejects the goods or Services or revokes acceptance of the goods or Services, OCSD
may(1) cancel the Contract; (2) recover whatever amount of the purchase price OCSD has paid,
and/or (3) "cover" by purchasing, or contracting to purchase, substitute goods or Services for
those due from Service Provider. In the event OCSD elects to"cover' as described in (3), OCSD
shall be entitled to recover from Service Provider as damages the difference between the cost of
the substitute goods or Services and the Contract price, together with any incidental or
consequential damages.
29. Dispute Resolution 40
29.1 In the event of a dispute as to the construction.or interpretation of this Contract, or any
rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute
by mediation. The Parties shall mutually select a mediator to facilitate the resolution of the
dispute. If the Parties are unable to agree on a mediator, the mediation shall be conducted in
accordance with the Commercial Mediation Rules of the American Arbitration Agreement,through
the alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of
Orange County ("JAMS"), or any similar organization or entity conducting an alternate dispute
resolution process.
29.2 In the event the Parties are unable to timely resolve the dispute mediation, the
issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected,
or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator,or three arbitrators
acting as a board, shall take such evidence and make such investigation as deemed appropriate
and shall render a written decision on the matter in question. The arbitrator shall decide each
and every dispute in accordance with the laws of the State of California. The arbitrator's decision
and award shall be subject to review for errors of fact or law in the Superior Court for the County
of Orange, with a right of appeal from any judgment issued therein.
30. Attornev's Fees If any action at law or inequity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this
Contract, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
31. Survival The provisions of this Contract dealing with Payment,Warranty, Indemnity, and
Forum for Enforcement, shall survive termination or expiration of this Contract.
Orange County Sanitation District 7 of 9 Specification No. S-2017-824BD
32. Severability If any section, subsection, or provision of this Contract, or any agreement
or instrument contemplated hereby, or the application of such section, subsection, or provision is
held invalid, the remainder of this Contract or instrument in the application of such section,
subsection or provision to persons or circumstances other than those to which it is held invalid,
shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate
the expectations of the Parties.
33. Damage to OCSD's Property Any of OCSD's property damaged by Service Provider,
any subcontractors or by the personnel of eitherwill be subject to repair or replacement by Service
Provider at no cost to OCSD.
34. Disclosure Service Provider agrees not to disclose, to any third party,data or information
generated from this project without the prior written consent from OCSD.
35. Independent Contractor The legal relationship between the parties hereto is that of an
independent contractor, and nothing herein shall be deemed to make Service Provider an OCSD
employee. During the performance of this Contract, Service Provider and its officers, employees,
and agents shall act in an independent capacity and shall not act as OCSD's officers, employees,
or agents. Service Provider and its officers, employees, and agents shall obtain no rights to any
benefits which accrue to OCSD's employees.
36. Limitations upon Subcontracting and Assionment Service Provider shall not delegate
any duties nor assign any rights under this Contract without the prior written consent of OCSD.
Any such attempted delegation or assignment shall be void.
37. Third Party Rights Nothing in this Conevshall be construed to give any rights or
benefits to anyone other than OCSD and Service Provider.
38. Non-Liability of OCSD Officers and Employees No officer or employee of OCSD shall
be personally liable to Service Provider, or any successor-in-interest, in the event of any default
or breach by OCSD or for any amount which may become due to Service Provider or to its
successor, or for breach of any obligation for the terms of this Contract.
39. Read and Understood By signing this Contract, Service P der r resents that he has
read and understood the terms and conditions of the Contract.
40. Authority to Execute The persons executing this Contract on behalf of the Parties
warrant that they are duly authorized to execute this Contract and that by executing this Contract,
the Parties are formally bound.
41. Entire Contract This Contract constitutes the entire agreement of the Parties and
supersedes all prior written or oral and all contemporaneous oral agreements, understandings,
and negotiations between the Parties with respect to the subject matter hereof.
Orange County Sanitation District 8 of 9 Specification No. S-2017-824BD
42. Notices All notices under this Contract must be in writing. Written notice shall be
delivered by personal service or sent by registered or certified mail, postage prepaid, return
receipt requested, or by any other overnight delivery service which delivers to the noticed
destination and provides proof of delivery to the sender. Rejection or other refusal to accept or
the inability to deliver because of changed address for which no notice was given as provided
hereunder shall be deemed to be receipt of the notice, demand or request sent. All notices shall
be effective when first received at the following addresses:
OCSD: Michelle Hadaway
Senior Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
SERVICE PROVIDER: Synagro-WWT, Inc.
3845 Bithell Lane
Suisun City, CA 94585
Each party shall pr the oth arty written notice of any change in address as soon as
practicable.
IN WITNESS WHEREO , endi o be belly bound, the Parties hereto have caused this
Contract to be signed by the duly authorized representatives.
OfNGE COSY SANITATION DISTRICT
Dated: By:
Gregory C. Sebourn, PLS
Chair, Board of Directors
Dated: By:
Clerk of the Board Ao
Dated: By:
Contracts, Purchasing and Materials
Management Manager
SYNAGRO-WWT, INC.
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
Orange County Sanitation District 9 of 9 Specification No. S-2017-824BD
OPERATIONS COMMITTEE Meeting Date Ta Bd.of Dir.
07/05/17 07/26/17
AGENDA REPORT emNumber hem Number
3
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations & Maintenance
SUBJECT: LIGHT DUTY TRUCK COOPERATIVE PROCUREMENT WITH
NATIONAL AUTO FLEET GROUP
GENERAL MANAGER'S RECOMMENDATION
Approve the purchase of four light duty trucks using the National Joint Powers Alliance
cooperative Contract Number 120716-NAF with National Auto Fleet Group for a total cost
of $148,000 in accordance with Ordinance No. OCSD-47, Section 2.03(B), Cooperative
Purchases.
BACKGROUND
The Orange County Sanitation District (Sanitation District) fleet has approximately 200
cars and trucks. The Sanitation District budgeted for replacement of four light duty trucks
that are at the end of their useful life or that require excessive maintenance to keep
operational.
RELEVANT STANDARDS
• Participate in National Joint Powers Authority (NJPA) cooperative purchasing
program
• Consider life-cycle costs in all decisions
PROBLEM
The Sanitation District identified four light duty trucks for replacement in FY 2016-17. The
existing trucks have reached the end of their useful life and are encountering excessive
repairs or are no longer operational.
PROPOSED SOLUTION
Staff is seeking approval to purchase four replacement vehicles.
TIMING CONCERNS
These light duty trucks are used by maintenance staff in the treatment plant and
collections systems.
Page 1 of 2
RAMIFICATIONS OF NOT TAKING ACTION
If these vehicles are not replaced, the Sanitation District may incur excessive
maintenance repairs and exposure to safety and reliability issues.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
Seeking the lowest price, the Sanitation District is utilizing the NJPA agreement. The
NJPA is a public agency that serves as a cooperative for over 50,000 member agencies
nationally. The Sanitation District is a member of the NJPA at no cost. NJPA offers a
multitude of cooperatively contracted products, equipment, and services opportunities to
education and government entities throughout the country.
This purchase of four vehicles is in accordance with the NJPA agreement contract with
National Auto Fleet Group is in accordance with the Sanitation District's Purchasing
Ordinance, Section 2.03B. The Contract Number 120716-NAF Category Fleet Services,
Parts & Equipment is in effect through January 17, 2021. The total cost includes
California state sales tax, freight, and all applicable fees.
All NJPA contracts have been competitively solicited nationally, reviewed, evaluated by
committee, and recommended to the NJPA Board of Directors for award with the
Minnesota public purchasing rules and regulations applicable to NJPA. Each solicitation
is issued on behalf of NJPA members nationwide. Each request for proposal (RFP)
advises all responders that NJPA desires a vendor who can sell and service participating
members in all 50 states. All RFP respondents understand that these contracts will be
under consideration for use by government, education, and non-profit member agencies
throughout the United States.
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. These items have been budgeted through the Capital Equipment Budget
Summary (Fiscal Year 2016-2017 Budget Section 8 (Line Item: 822-Fleet Services,
Pages 104-105).
Date of Aooroval Contract Amount Contlnaencv
07/26/2017 $148,000
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package:
N/A
Page 2 of 2
OPERATIONS COMMITTEE Meeting Date TOBd.of Dir.
07/05/17 07/26/17
AGENDA REPORT IternNamber Item Number
a
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations & Maintenance
SUBJECT: PREVENTATIVE MAINTENANCE OF STANDBY EMERGENCY
ELECTRICAL GENERATORS, SPECIFICATION NO. S-2017-822BD
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Service Contract with Valley Power Services, Inc. for the annual
preventative maintenance of standby electrical generators located at Orange
County Sanitation District Plant Nos.1 & 2 and Pump Stations, Specification No.
S-2017-82213D, for the period September 1, 2017 through August 31, 2019, for an
amount not to exceed of$148,500, with two (2) two-year renewal options; and
B. Approve a contingency of$29,700 (20%) per two-year period.
BACKGROUND
The Orange County Sanitation District(Sanitation District)owns and operates 26 standby
electrical generators. These generators are used to power critical processes at both
treatment plants and pump stations when primary electrical power is lost. These assets
require specific preventative maintenance to ensure reliable functionality.
RELEVANT STANDARDS
• Protection of Orange County Sanitation District assets
• Consider life-cycle costs in all decisions
• 24/7/365 treatment plant reliability
PROBLEM
During routine function checks and load testing it was determined that the reliability of the
generators do not meet our desired level of service and therefore additional preventative
maintenance is needed. The maintenance required to achieve the needed reliability is
beyond the staffing resources of the Sanitation District, as well as the requirement for
specialized equipment.
PROPOSED SOLUTION
Establish a standby generator maintenance and repair contract to ensure these critical
assets are maintained and function reliably during potential power outages.
Page 1 of 2
RAMIFICATIONS OF NOT TAKING ACTION
Delays in completing this work will result in compromised reliability of these critical assets.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
This Contract was competitively bid with eight prospective bidders attending the
mandatory job walk with three bids being received by the Sanitation District. The
information on the three bidders is listed below. Staff recommends that Valley Power
Services, Inc. be awarded the Preventative Maintenance of Standby Emergency
Electrical Generators Contract as the lowest responsive and responsible bidder.
Bid Information Total Cost
Valley Power Services, Inc. $148,500.00
Cummins Cal Pacific, LLC $158,378.35
Quinn Company $307,260.00
A 20% contingency is requested for this effort due to the likelihood of potentially
unforeseen repair requirements that may be discovered during the preventative
maintenance.
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted in the Division 870 and 880 operating budgets
(Line item: Repairs and Maintenance, Section 6, Pages 92 and 96).
Date of Approval Contract Amount Contingency
07/26/2017 $148,500 $29,700 (20%)
ATTACHMENT
The following affachment(s) may be viewed on-line at the OCSD website (wwwocsd.corn with the
complete agenda package:
• Valley Power Services, Inc. Service Contract
Page 2 d 2
SERVICE CONTRACT
Preventative Maintenance of Standby Prime Movers and Generators
Specification No. S-2017-822BD
THIS CONTRACT is made and entered into as of the date fully executed below, by and between
Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue,
Fountain Valley, CA 92708-7018 (hereinafter referred to as"OCSD")and Valley Power Services,
Inc. with a principal place of business at 425 South Hacienda Boulevard, City of Industry, CA
91745 (hereinafter referred to as "Service Provider") collectively referred to as the "Parties".
WITNESSETH
WHEREAS, OCSD desires to retain the services of Service Provider for annual preventative
maintenance work activities for the Standby Prime Movers and Generators at both Plant 1 and
Plant 2 "Services"; and
WHEREAS, OCSD has chosen Service Provider to conduct Services in accordance with
Ordinance No. OCSD-47; and
WHEREAS, on July 26, 2017, the Board of Directors of OCSD, by minute order, authorized
execution of this Contract between OCSD and Service Provider; and
WHEREAS, Service Provider is qualified by virtue of experience, training, and education and
expertise to accomplish such Services,
NOW THEREFORE, in consideration of the promises and mutual benefits exchanged between
the Parties, it is mutually agreed as follows:
1. Introduction
1.1 This Contract and all exhibits hereto (called the "Contract") is made by OCSD and
Service Provider. The Terms and Conditions herein exclusively govern the purchase of Services
as described in the Scope of Work, attached hereto and incorporated herein by reference as
Exhibit"A".
1.2 Exhibits to this Contract are incorporated by reference and made a part of this Contract
as though fully set forth at length herein. Exhibits to this Contract are as follows in order of
precedence:
Exhibit"A" Scope of Work(Including Addendum 1 issued April 13, 2017 attached)
Exhibit"B" Bid from Service Provider
Exhibit"C" Acknowledgement of Insurance Requirements
Exhibit"D" OCSD Safety Standards
Exhibit"E-J" Not Used
Exhibit X' Not Used
Exhibit"L" Not Used
1.3 In the event of any conflict or inconsistency between the provisions of this Contract and
any of the provisions of the exhibits hereto, the provisions of this Contract shall in all respects
govern and control.
Orange County Sanitation District 1 of 9 Specification No. S-2017-822BD
1.4 The provisions of this Contract may be amended or waived only by a writing executed by
authorized representatives of both Parties hereto.
1.5 The various headings in this Contract are inserted for convenience only and shall not affect
the meaning or interpretation of this Contract or any Paragraph or provision hereof.
1.6 The term "days", when used in the Contract, shall mean calendar days, unless otherwise
noted as business days.
1.7 OCSD holidays (non-working days) are as follows: New Year's Day, Lincoln's Birthday,
President's Day, Memorial Day, Independence Day, Labor Day,Veterans Day,Thanksgiving Day,
Day after Thanksgiving, Christmas Eve, and Christmas Day.
1.8 The term "work days", when used in this Contract, shall be as defined in Exhibit"A".
1.9 Service Provider shall provide OCSD with all required premiums and/or overtime work at
no charge beyond the price provided under"Compensation" below.
1.10 Except as expressly provided otherwise, OCSD accepts no liability for any expenses,
losses, or action incurred or undertaken by Service Provider as a result of work performed in
anticipation of purchases of said services by OCSD.
2. Compensation Compensation to be paid by OCSD to Service Provider for Services
under this Contract for a firm fixed price not to exceed the total amount of One Hundred Forty-
Eight Thousand Five Hundred and 00/00 Dollars ($148,500.00).
3. California Department of Industrial Relations (DIRMeoistration and Record of
Wages
3.1 To the extent Service Providers employees and/or its subcontractors who will perform
Work during the design and preconstruction phases of a construction contract for which Prevailing
Wage Determinations have been issued by the DIR and as more specifically defined under Labor
Code Section 1720 at seq, Service Provider and its subcontractors shall comply with the
registration requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section
1771.4, the Work is subject to compliance monitoring and enforcement by the DIR.
3.2 The Service Provider and its subcontractors shall maintain accurate payroll records and
shall comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code 1771.4(a)(3). Penalties for non-compliance
with the requirements of Section 1776 may be deducted from progress payments per Section
1776.
3.3 Pursuant to Labor Code Section 1776, the Service Provider and its subcontractors shall
furnish a copy of all certified payroll records to OCSD and/or general public upon request,
provided the public request is made through OCSD, the Division of Apprenticeship Standards or
the Division of Labor Enforcement of the Department of Industrial Relations.
3.4 The Service Provider and its subcontractors shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of Regulation
Section 16461(e).
Orange County Sanitation District 2 of 9 Specification No. S-2017-822BD
4. Payments Payments shall be made on a lump sum basis per completion of each item as
defined in Exhibit"B" and upon approval by OCSD Project Manager, or his designee, of invoices
submitted for Services as described in Exhibit "A". OCSD, at its sole discretion, shall be the
determining party as to whether the work and deliverables listed below have been satisfactorily
completed.
5. Invoices
5.1 OCSD shall pay within 30 days of completion and receipt and approval by OCSD Project
Manager of an itemized invoice, in a form acceptable to OCSD to enable audit of the charges
thereon. Invoices shall include the Purchase Order Number.
5.2 Invoices shall be emailed by Service Provider to OCSD Accounts Payable at
APStaff(d).00SD.com and reference the following in the subject line: "INVOICE", the Purchase
Order number, the Project Manager, and Specification No. 5-2017-822131D.
6. Audit Rights Service Provider agrees that, during the term of this Contract and for a
period of three(3)years after its termination, OCSD shall have access to and the right to examine
any directly pertinent books, documents, and records of Service Provider relating to the invoices
submitted by Service Provider pursuant to this Contract.
7. Scone of Work Subject to the terms of this Contract, Service Provider shall perform the
Services attached hereto and incorporated herein Exhibit"A". Service Provider shall perform said
Services in accordance with generally accepted industry and professional standards.
8. Modifications to Scope of Work Requests for modifications to the Scope of Work
hereunder can be made by OCSD at any time. All modifications must be made in writing and
signed by both Parties.
9. Contract Term The Services provided under this Contract shall be two (2)years starting
from September 1, 2017 through August 31, 2019.
10. Renewals
10.1 OCSD may exercise the option to renew the Contract for up to two (2) two-year periods
based upon the criteria set forth in Exhibit "A", under the terms and conditions contained herein.
OCSD shall make no obligation to renew nor give reason if it elects not to renew.
10.2 Renewals may be made through the OCSD Purchase Order process.
11. Termination
11.1 OCSD reserves the right to terminate this Contract for its convenience, with or without
cause, in whole or in part, at any time, by written notice from OCSD of intent to terminate. Upon
receipt of a termination notice, Service Provider shall immediately discontinue all work under this
Contract(unless the notice directs otherwise). OCSD shall thereafter, within thirty(30) days, pay
Service Provider for work performed (cost and fee) to the date of termination. Service Provider
expressly waives any claim to receive anticipated profits to be earned during the uncompleted
portion of this Contract. Such notice of termination shall terminate this Contract and release
OCSD from any further fee, cost or claim hereunder by Service Provider other than for work
performed to the date of termination.
11.2 OCSD reserves the right to terminate this Contract immediately upon OCSD's
determination that Service Provider is not meeting specification requirements, if the level of
service is inadequate, or any other default of this Contract.
Orange County Sanitation District 3 of 9 Specification No. S-2017-822BD
11.3 OCSD may also immediately cancel for default of this Contract in whole or in part by
written notice to Service Provider:
• if Service Provider becomes insolvent or files a petition under the Bankruptcy Act; or
• if Service Provider sells its business; or
• if Service Provider breaches any of the terms of this Contract; or
• if total amount of compensation exceeds the amount authorized under this Contract.
11.4 All OCSD property in the possession or control of Service Provider shall be returned by
Service Provider to OCSD upon demand, or at the termination of this Contract, whichever occurs
first.
12. Insurance Service Provider and all subcontractors shall purchase and maintain,
throughout the life of this Contract and any periods of warranty or extensions, insurance in
amounts equal to the requirements set forth in the signed Acknowledgement of Insurance
Requirements (attached hereto and incorporated herein as Exhibit "C"). Service Provider shall
not commence work under this Contract until all required insurance is obtained in a form
acceptable to OCSD, nor shall Service Provider allow any subcontractor to commence service
pursuant to a subcontract until all insurance required of the subcontractor has been obtained.
Failure to maintain required insurance coverage shall result in termination of this Contract.
13. Bonds Not Used
14. Indemnification and Hold Harmless Provision Service Provider shall assume all
responsibility for damages to property and/or injuries to persons,including accidental death,which
may arise out of or be caused by Service Provider's services under this Contract, or by its
subcontractor or by anyone directly or indirectly employed by Service Provider, and whether such
damage or injury shall accrue or be discovered before or after the termination of the Contract.
Except as to the sole active negligence of or willful misconduct of OCSD, Service Provider shall
indemnify, protect, defend and hold harmless OCSD, its elected and appointed officials, officers,
agents and employees, from and against any and all claims, liabilities, damages or expenses of
any nature, including attorneys'fees: (a)for injury to or death of any person or damage to property
or interference with the use of property, arising out of or in connection with Service Provider's
performance under the Contract,and/or(b)on account of use of any copyrighted or uncopyrighted
material, composition, or process, or any patented or unpatented invention, article or appliance,
furnished or used under the Contract, and/or (c)on account of any goods and services provided
under this Contract. This indemnification provision shall apply to any acts or omissions, willful
misconduct, or negligent misconduct, whether active or passive, on the part of Service Provider
of or anyone employed by or working under Service Provider. To the maximum extent permitted
by law, Service Provider's duty to defend shall apply whether or not such claims, allegations,
lawsuits, or proceedings have merit or are meritless, or which involve claims or allegations that
any of the parties to be defended were actively, passively, or concurrently negligent, or which
otherwise assert that the parties to be defended are responsible, in whole or in part, for any loss,
damage, or injury. Service Provider agrees to provide this defense immediately upon written
notice from OCSD, and with well qualified, adequately insured, and experienced legal counsel
acceptable to OCSD.
15. Safety Standards and Human Resources IHRI Policies OCSD requires all contractors
and Service Providers to follow and ensure their employees and all subcontractors follow all State
and Federal regulations as well as OCSD requirements while working at OCSD locations. If
during the course of a contract it is discovered that OCSD policies, safety manuals, or contracts
do not comply with State or Federal regulations then the Service Provider is required to follow the
Orange County Sanitation District 4 of 9 Specification No. S-2017-822BD
most stringent regulatory requirement at no cost to OCSD. Service Provider and all their
employees and subcontractors,shall adhere to all applicable OCSD Safety Standards and Human
Resources Policies found at: OCSD.com, "Document Central", under the heading "About Us".
OCSD's Safety Standards and Human Resource Policies are hereby incorporated by reference
as though fully set forth herein in Exhibit"D".
16. Warranties In addition to the Warranties stated in Exhibit "A", the following shall apply:
16.1 Manufacturer's standard warranty shall apply. All manufacturer warranties will begin at
date of completion of this Contract.
16.2 Service Provider's warranty: If, within the 12-month period following completion of its
Services, OCSD informs Service Provider that any part of the Services fails to meet the standards
required under this Contract, Service Provider shall, within the time agreed to by OCSD and
Service Provider, take all such actions as are necessary to correct or complete the noted
deficiency(ies) at Service Provider's sole expense.
17. Performance Time is of the essence in the performance of this Contract and the
provisions hereof.
18. Force Majeure Neither party shall be liable for delays caused by accident, flood, acts of
God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said
party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force
Majeure condition may be rescheduled by mutual consent or may be eliminated from the Contract.
19. Freiaht (F.O.B. Destination) Service Provider assumes full responsibility for all
transportation, transportation scheduling, packing, handling, insurance, and other services
associated with delivery of all products deemed necessary under this Contract.
20. FamlRarify with Work By executing this Contract, Service Provider warrants that: 1) it
has investigated the work to be performed; 2) it has investigated the site of the work and is aware
of all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work
under this Contract. Should Service Provider discover any latent or unknown conditions materially
differing from those inherent in the work or as represented by OCSD, it shall immediately inform
OCSD of this and shall not proceed, except at Service Provider's risk, until written instructions are
received from OCSD.
21. Regulatory Reauirements Service Provider shall perform all work under this Contract in
strict conformance with applicable federal, state, and local regulatory requirements including, but
not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and California
Water Codes Division 2.
22. Licenses. Permits. Ordinances and Regulations Service Provider represents and
warrants to OCSD that it has obtained all licenses, permits, qualification and approvals of
whatever nature that are legally required to engage in this work. Any and all fees required by
State, County, City and/or municipal laws, codes and/or tariffs that pertain to work performed
under the terms of this Contract will be paid by Service Provider.
23. Applicable Laws and Regulations Service Provider shall comply with all applicable
federal, state, and local laws, rules, and regulations. Service Provider also agrees to indemnify
and hold harmless from any and all damages and liabilities assessed against OCSD as a result
of Service Provider's noncompliance therewith. Any permission required by law to be included
herein shall be deemed included as a part of this Contract whether or not specifically referenced.
Orange County Sanitation District 5 of 9 Specification No. S-2017-822BD
24. Contractor's Employees Compensation
24.1 Davis-Bacon Act— Not Used
24.2 General Prevailing Rate — OCSD has been advised by the State of California Director of
Industrial Relations of its determination of the general prevailing rate of per diem wages and the
general prevailing rate for legal holiday and overtime work in the locality in which the work is to
be performed for each craft or type of work needed to execute this Contract, and copies of the
same are on file in the office of the engineer of OCSD. The Service Provider agrees that not less
than said prevailing rates shall be paid to workers employed on this Contract as required by Labor
Code Section 1774 of the State of California. Per California Labor Code 1773.2, OCSD will have
on file copies of the prevailing rate of per diem wages at its principal office and at each job site,
which shall be made available to any interested party upon request.
24.3 Forfeiture For Violation - Service Provider shall, as a penalty to OCSD, forfeit fifty dollars
($50.00) for each calendar day or portion thereof for each worker paid (either by the Service
Provider or any subcontractor under it) less than the prevailing rate of per diem wages as set by
the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor
Code for the work provided for in this Contract, all in accordance with Section 1775 of the Labor
Code of the State of California.
24.4 Apprentices — Sections 1777.5, 1777.6, 1777.7 of the Labor Code of the State of
California, regarding the employment of apprentices are applicable to this Contract and the
Service Provider shall comply therewith if the prime Contract involves thirty thousand dollars
($30,000.00)or more or twenty (20)working days or more; or if contracts of specialty contractors
not bidding for work through the general or prime Contractor are two thousand dollars($2,000.00)
or more or five (5)working days or more.
24.5 Workday — In the performance of this Contract, not more than eight (8) hours shall
constitute a day's work, and the Service Provider shall not require more than eight (8) hours of
labor in a day from any person employed by him hereunder except as referenced above. Service
Provider shall conform to Article 3, Chapter 1, Part 7 (Section 1810 at seq.)of the Labor Code of
the State of California and shall forfeit to OCSD as a penalty, the sum of twenty five dollars
($25.00) for each worker employed in the execution of this Contract by Service Provider or any
subcontractor for each calendar day during which any worker is required or permitted to labor
more than eight(8)hours in any one calendar day and forty(40)hours in any one week in violation
of said Article. Service Provider shall keep an accurate record showing the name and actual
hours worked each calendar day and each calendar week by each worker employed by Service
Provider in connection with the project.
24.6 Record of Wages; Inspection - Service Provider agrees to maintain accurate payroll
records showing the name, address, social security number,work classification, straight-time and
overtime hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by it in connection with the project
and agrees to require that each of its subcontractors do the same. All payroll records shall be
certified as accurate by the applicable Service Provider or subcontractor or its agent having
authority over such matters. Service Provider further agrees that its payroll records and those of
its subcontractors shall be available to the employee or employee's representative, the Division
of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply
with all of the provisions of Labor Code Section 1776, in general. Penalties for non-compliance
with the requirements of Section 1776 may be deducted from project payments per the
requirements of Section 1776.
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25. South Coast Air Quality Management District's (SCAQMD) Requirements It is
Service Provider's responsibility that all equipment furnished and installed be in accordance with
the latest rules and regulations of the South Coast Air Quality Management District (SCAQMD).
All contract work practices, which may have associated emissions such as sandblasting, open
field spray painting or demolition of asbestos containing components or structures, shall comply
with the appropriate rules and regulations of the SCAQMD.
26. Governing Law This Contract shall be governed by and interpreted under the laws of the
State of California and the Parties submit to jurisdiction in Orange County, in the event any action
is brought in connection with this Contract or the performance thereof.
27. Breach The waiver of either party of any breach or violation of, or default under, any
provision of this Contract, shall not be deemed a continuing waiver by such party of any other
provision or of any subsequent breach or violation of this Contract or default thereunder. Any
breach by Service Provider to which OCSD does not object shall not operate as a waiver of
OCSD's rights to seek remedies available to it for any subsequent breach.
28. Remedies In addition to other remedies available in law or equity, if the Service Provider
fails to make delivery of the goods or Services or repudiates its obligations under this Contract,
or if OCSD rejects the goods or Services or revokes acceptance of the goods or Services, OCSD
may(1) cancel the Contract; (2) recover whatever amount of the purchase price OCSD has paid,
and/or (3) "cover' by purchasing, or contracting to purchase, substitute goods or Services for
those due from Service Provider. In the event OCSD elects to "cover' as described in (3), OCSD
shall be entitled to recover from Service Provider as damages the difference between the cost of
the substitute goods or Services and the Contract price, together with any incidental or
consequential damages.
29. Dispute Resolution
29.1 In the event of a dispute as to the construction or interpretation of this Contract, or any
rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute
by mediation. The Parties shall mutually select a mediator to facilitate the resolution of the
dispute. If the Parties are unable to agree on a mediator, the mediation shall be conducted in
accordance with the Commercial Mediation Rules of the American Arbitration Agreement,through
the alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of
Orange County ("JAMS"), or any similar organization or entity conducting an alternate dispute
resolution process.
29.2 In the event the Parties are unable to timely resolve the dispute through mediation, the
issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected,
or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator,or three arbitrators
acting as a board, shall take such evidence and make such investigation as deemed appropriate
and shall render a written decision on the matter in question. The arbitrator shall decide each
and every dispute in accordance with the laws of the State of California. The arbitrator's decision
and award shall be subject to review for errors of fact or law in the Superior Court for the County
of Orange, with a right of appeal from any judgment issued therein.
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30. Attornev's Fees If any action at law or inequity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this
Contract, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
31. Survival The provisions of this Contract dealing with Payment, Warranty, Indemnity, and
Forum for Enforcement, shall survive termination or expiration of this Contract.
32. Severability If any section, subsection, or provision of this Contract, or any agreement
or instrument contemplated hereby, or the application of such section, subsection, or provision is
held invalid, the remainder of this Contract or instrument in the application of such section,
subsection or provision to persons or circumstances other than those to which it is held invalid,
shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate
the expectations of the Parties.
33. Damaue to OCSD's Property Any of OCSD's property damaged by Service Provider,
any subcontractors or by the personnel of eitherwill be subject to repair or replacement by Service
Provider at no cost to OCSD.
34. Disclosure Service Provider agrees not to disclose,to any third party,data or information
generated from this project without the prior written consent from OCSD.
35. Independent Contractor The legal relationship between the parties hereto is that of an
independent contractor, and nothing herein shall be deemed to make Service Provider an OCSD
employee. During the performance of this Contract, Service Provider and its officers, employees,
and agents shall act in an independent capacity and shall not act as OCSD's officers, employees,
or agents. Service Provider and its officers, employees, and agents shall obtain no rights to any
benefits which accrue to OCSD's employees.
36. Limitations upon Subcontracting and Assignment Service Provider shall not delegate
any duties nor assign any rights under this Contract without the prior written consent of OCSD.
Any such attempted delegation or assignment shall be void.
37. Third Party Rights Nothing in this Contract shall be construed to give any rights or
benefits to anyone other than OCSD and Service Provider.
38. Non-Liability of OCSD Officers and Employees No officer or employee of OCSD shall
be personally liable to Service Provider, or any successor-in-interest, in the event of any default
or breach by OCSD or for any amount which may become due to Service Provider or to its
successor, or for breach of any obligation for the terms of this Contract.
39. Read and Understood By signing this Contract, Service Provider represents that he has
read and understood the terms and conditions of the Contract.
40. Authority to Execute The persons executing this Contract on behalf of the Parties
warrant that they are duly authorized to execute this Contract and that by executing this Contract,
the Parties are formally bound.
41. Entire Contract This Contract constitutes the entire agreement of the Parties and
supersedes all prior written or oral and all contemporaneous oral agreements, understandings,
and negotiations between the Parties with respect to the subject matter hereof.
Orange County Sanitation District 8 of 9 Specification No. S-2017-822BD
42. Notices All notices under this Contract must be in writing. Written notice shall be
delivered by personal service or sent by registered or certified mail, postage prepaid, return
receipt requested, or by any other overnight delivery service which delivers to the noticed
destination and provides proof of delivery to the sender. Rejection or other refusal to accept or
the inability to deliver because of changed address for which no notice was given as provided
hereunder shall be deemed to be receipt of the notice, demand or request sent. All notices shall
be effective when first received at the following addresses:
OCSD: Michelle Hadaway
Senior Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
SERVICE PROVIDER: Valley Power Services, Inc.
425 South Hacienda Boulevard
City of Industry, CA 91745
Each party shall provide the other party written notice of any change in address as soon as
practicable.
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this
Contract to be signed by the duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT
Dated: By:
Gregory C. Sebourn, PLS
Chair, Board of Directors
Dated: By:
Clerk of the Board
Dated: By:
Contracts, Purchasing and Materials
Management Manager
VALLEY POWER SERVICES, INC.
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
Orange County Sanitation District 9 of 9 Specification No. S-2017-822BD
OPERATIONS COMMITTEE Meeting Date Ta Bd.of Dir.
07/05/17 07/26/17
AGENDA REPORT IWmNumber Item Number
s
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations and Maintenance
SUBJECT: PURCHASE OF SODIUM HYPOCHLORITE, SPECIFICATION NO.
C-2017-853BD
GENERAL MANAGER'S RECOMMENDATION
A. Award an Agreement to JCI Jones Chemicals, Inc. for the purchase of sodium
hypochlorite (bleach), Specification No. C-2017-853BD, for the period
September 1, 2017 through August 31, 2018, for a unit price of $0.51/gallon
delivered, plus applicable sales tax, for an estimated annual amount of
$626,726.25, with four(4) one-year renewal options; and
B. Approve a (10%) unit price contingency.
BACKGROUND
Bleach has historically been used at the Orange County Sanitation District (Sanitation
District)treatment plants for disinfection of plant water and odor control. Bleach is added
to the chemical scrubbers at the treatment plants to remove hydrogen sulfide from the
odorous air from the sewers and treatment processes. Staff estimates approximately
1,130,000 gallons of bleach usage during this contract period.
RELEVANT STANDARDS
• Zero odor incidents/events under normal operating conditions for Plants 1 and 2
• Operate and maintain facilities to minimize impacts on surrounding communities,
including odor, noise, and lighting
PROBLEM
The wastewater treatment processes at Plant Nos. 1 and 2 generate foul odors that must
be controlled to minimize adverse impact to our neighbors.
PROPOSED SOLUTION
Bleach has been effective in controlling hydrogen sulfide odors from our treatment
facilities and is an effective disinfectant for plant water.
Page d of 2
TIMING CONCERNS
Our current contract expires on August 31, 2017, and there are no renewals.
RAMIFICATIONS OF NOT TAKING ACTION
Shortages in available bleach will impede our ability to mitigate odor at both plants and
result in increased odor to the surrounding neighbors.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
The Sanitation District advertised for a-bids for the purchase of bleach on April 6, 2017.
Two sealed bids were received on May 16, 2017. The bids were evaluated in accordance
with the Sanitation District's policies and procedures. Staff recommends awarding a
chemical purchase contract to the lowest responsive and responsible bidder, JCI Jones
Chemicals, Inc., for the purchase of bleach. The following is a summary of the bids
received.
Bidder Amount of Bid (Excluding Applicable Sales Tax)
Olin Corporation $615,850
JCI Jones Chemicals, Inc. $576,300
Univar USA Inc No bid
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted in the Division 830 and 840 operating budgets
(Section 6, Line item: Supplies, Pages 84 and 88).
Date of Approval Contract Amount Contingency
07/26/2017 $0.51(unit price) 10%unit price contingency
ATTACHMENTS:
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package:
• Sodium Hypochlorite Agreement, Specification No. C-2017-853BD
Page 2 of 2
AGREEMENT
FOR PURCHASE OF SODIUM HYPOCHLORITE— NaOCI (BLEACH) SOLUTION
SPECIFICATION NO. C-2017.853BD
THIS AGREEMENT is made and entered into as of the date fully executed below, by and between
Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue,
Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and JCI Jones Chemicals,
Inc. with a principal place of business at 1401 Del Amo Boulevard, Torrance, CA 90501
(hereinafter referred to as "Supplier") collectively referred to as the "Parties".
W/TNESETH
WHEREAS, OCSD requires Sodium Hypochlorite Solution in its sewage treatment process and
has prepared Scope of Work (attached hereto and incorporated herein by reference as Exhibit
"A")for the purchase of said Sodium Hypochlorite Solution;
WHEREAS, sealed bids for the Purchase of Sodium Hypochlorite Solution, Specification No.
C-2017-853BD were solicited, received, and opened on May 16, 2017; and
WHEREAS, on July 26, 2017, the Board of Directors of OCSD, by minute order, authorized
execution of this Agreement between OCSD and Supplier; and
WHEREAS, OCSD has chosen Supplier to provide Sodium Hypochlorite Solution in accordance
with Ordinance No. OCSD-47; and
NOW, THEREFORE, in consideration of the promises and mutual benefits exchanged between
the Parties, it is mutually agreed as follows:
1. Introduction
1.1 This Agreement and all exhibits hereto (called the "Agreement") is made by OCSD and
Supplier. The terms and conditions herein exclusively govern the purchase of Sodium
Hypochlorite Solution as described in the Scope of Work/Technical Specifications, attached
hereto and incorporated herein by reference as Exhibit"A".
1.2 Exhibits to this Agreement are incorporated by reference and made a part of this
Agreement as though fully set forth at length herein. Exhibits to this Agreement are as follows in
order of precedence:
Exhibit"A" Scope of Work/Technical Specifications
Exhibit"B" Bid from Supplier
Exhibit"C" Acknowledgement of Insurance Requirements
Exhibit"D" OCSD Safety Standards
1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and
any of the provisions of the exhibits hereto, the provisions of this Agreement shall in all respects
govern and control.
2. Delivery
2.1 LOCATION: Deliveries shall be made to Plant 1 located at 10844 Ellis Avenue, Fountain
Valley, CA 92708 and Plant No. 2 at 22212 Brookhurst Street, Huntington Beach, CA. in
accordance with Exhibit"A"inclusive of its attachments. Complete orders will be delivered F.O.B.
Destination, and shall include unloading chemical into OCSD's Sodium Hypochlorite tanks.
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2.2 OCSD will pay only for the actual gallons of Sodium Hypochlorite Solution delivered,
based upon certified tare weight and net weight. Gallons invoiced by Supplier and payable by
OCSD will be for the total net gallons of Sodium Hypochlorite Solution delivered (loaded gross
weight minus the tare weight). Tare weight shall be determined immediately after each delivery
and prior to cleaning, emptying or clearing the delivery tank.
2.3 A delivery statement shall accompany all shipments and state the weight,gallons, specific
gravity of the product and percent delivered.
3. Possession
Ownership and control of all Sodium Hypochlorite Solution delivered pursuant to this
Agreement shall remain solely and exclusively with Supplier, until complete transfer of possession
by delivery to OCSD at the designated location is made from Supplier.
4. Quand
4.1 OCSD makes no guarantee to actual use or quantity of Sodium Hypochlorite Solution
purchased. Use may be sporadic based on the wastewater treatment requirements unique to the
treatment plant.
4.2 OCSD will, through the term of this Agreement, purchase Sodium Hypochlorite Solution
from Supplier exclusively, except when OCSD determines Supplier cannot make delivery within
the time specified, with the quality and quantity specified, at the Agreement price, the level of
service is inadequate,OCSD unapproved increase in active dry pound rate or for any other default
or breach of this Agreement. In such event, OCSD may purchase Sodium Hypochlorite Solution
elsewhere and charge Supplier any difference in the delivered price to OCSD from that provided
in this Agreement, or alternatively, OCSD may terminate the Agreement based on said breach or
failure to deliver the specified product. Quality control tests will be performed by OCSD on the
delivered Sodium Hypochlorite Solution to ensure that Specifications are attained.
5. Pricing and Invoicina
5.1 Supplier will invoice monthly for delivered Sodium Hypochlorite Solution per Exhibit "A",
and at the price(s) listed in the Bid Price Form (attached hereto and incorporated herein by
reference as Exhibit "B"). Prices shall include all cartage and taxes per gallon except California
State Sales Tax. The sales tax will be paid by OCSD.
5.2 OCSD shall pay, Net 30 days, upon receipt and approval by the OCSD Project Manager,
or designee of itemized invoices, submitted in duplicate, in a form acceptable to OCSD to enable
audit of the charges thereon. All invoices must reference the Purchase Order Number. Supplier
will mail the invoices to Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley,
CA 92708, attention Accounts Payable. All invoices shall include a description of the delivery
location,the delivery date and the unit price.All cash discounts shall be taken and computed from
the date of completion of tasks or acceptance of equipment, material, installation and training, or
from the date of receipt of invoice, whichever occurs last.
6. Modifications
6.1 This Agreement may be modified or changed only by written instrument in the form of an
amendment to this Agreement signed by both Parties.
6.2 Pricing modifications: The prices established in this Agreement shall remain firm for the
one-year Agreement term.Quarterly pricing will not be accepted.Any adjustments made will allow
for increases or decreases in the manufactured cost of the Sodium Hypochlorite Solution and will
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be based upon OCSD validated information furnished by Supplier and OCSD sources.
Adjustments will only be reviewed on an annual basis. OCSD reserves the right to agree with or
reject the proposed price increase or decrease.
6.3 Price changes may be made through the OCSD Purchase Order Process.
7. Aareement Term
The purchase of Sodium Hypochlorite Solution under this Agreement shall be for the
period of one (1) year commencing on September 1, 2017 and continuing through August 31,
2018.
8. Renewals
8.1 OCSO may exercise the option to renew the Agreement for up to four(4)one-year periods
based upon the criteria set forth in Exhibit "A", if mutually acceptable terms can be negotiated.
OCSD shall make no obligation to renew nor give reason if it elects not to renew. The prices
established in the original Agreement may be adjusted. Refer to Section titled Modifications listed
above for pricing modifications.
8.2 Renewals may be made through the OCSD Purchase Order Process.
9. Termination
9.1 OCSD reserves the right to terminate this Agreement for its convenience, with or without
cause, in whole or in part, at any time, by written notice to Supplier from OCSD. Upon receipt of
a termination notice,Supplier shall immediately discontinue all work under this Agreement(unless
the notice directs otherwise). OCSD shall thereafter,within thirty (30)days, pay Supplier for work
performed(cost and fee)to the date of termination.Supplier expressly waives any claim to receive
anticipated profits to be earned during the uncompleted portion of the Agreement. Such notice of
termination shall terminate this Agreement and release OCSD from any further fee, cost or claim
hereunder by Supplier other than for work performed to the date of termination.
9.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD's
determination that Supplier is not meeting specification requirements for delivery of quantities
needed, the level of service is inadequate, for poor quality of product, for OCSD unapproved
increase in rate, or any other default or breach of this Agreement.
9.3 OCSD may also terminate the Agreement for default in whole or in part by written notice
to Supplier from OCSD:
9.3.1 if Supplier becomes insolvent or files a petition under the Bankruptcy Act; or
9.3.2 if Supplier sells its business; or
9.3.3 if Supplier breaches any of the terms of this Agreement.
9.4 All OCSD property in the possession or control of Supplier shall be returned by Supplier
to OCSD upon demand, or at the termination of this Agreement, whichever occurs first.
10. Indemnification and Hold Harmless
Supplier shall assume all responsibility for damages to property and/or injuries to persons,
including accidental death, which may arise out of or be caused by Suppliers services under this
Agreement, or by its subcontractor or by anyone directly or indirectly employed by Supplier, and
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whether such damage or injury shall accrue or be discovered before or after the termination of
the Agreement. Except as to the sole active negligence of or willful misconduct of OCSD, Supplier
shall indemnify, protect, defend and hold harmless OCSD, its elected and appointed officials,
officers, agents and employees, from and against any and all claims, liabilities, damages or
expenses of any nature, including attorneys' fees: (a) for injury to or death of any person or
damage to property or interference with the use of property, arising out of or in connection with
Supplier's performance under this Agreement, and/or (b) on account of any goods and services
provided under this Agreement. This indemnification provision shall apply to any acts or
omissions, willful misconduct, or negligent misconduct, whether active or passive, on the part of
Supplier of or anyone employed by or working under Supplier. To the maximum extent permitted
by law, Supplier's duty to defend shall apply whether or not such claims, allegations, lawsuits, or
proceedings have merit or are meritless, or which involve claims or allegations that any of the
parties to be defended were actively, passively, or concurrently negligent, or which otherwise
assert that the parties to be defended are responsible, in whole or in part, for any loss, damage,
or injury. Supplier agrees to provide this defense immediately upon written notice from OCSD,
and with well qualified, adequately insured, and experienced legal counsel acceptable to OCSD.
11. Insurance
Supplier shall purchase and maintain, throughout the life of this Agreement and any
periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the
signed Acknowledgement of Insurance Requirements (attached hereto and incorporated herein
by reference as Exhibit "C"). Supplier shall not commence work under this Agreement until all
required insurance is obtained in a form acceptable to OCSD, nor shall Supplier allow any
subcontractor to commence service pursuant to a subcontract until all insurance required of the
subcontractor has been obtained. Failure to maintain required insurance coverage shall result in
termination of this Agreement.
12. Equipment Loss
OCSD will be responsible for any loss or damage to Supplier-owned equipment, when
OCSD determines OCSD is at fault, and will reimburse Supplier for such loss or damage upon
receipt of invoices, less a deduction for any amount determined to be the fault of Supplier.
13. Conflict of Interest and Reporting
Supplier shall at all times avoid conflict of interest or appearance of conflict of interest in
performance of this Agreement.
14. Supplier's Relationship to OCSD
Supplier's relationship to OCSD in the performance of this Agreement is that of an
independent contractor. The personnel performing services under this Agreement shall, at all
times, be under Supplier's exclusive direction and control, and shall be employees of Supplier
and not employees of OCSD. Supplier shall pay all wages, salaries and other amounts due its
employees in connection with this Agreement, and shall be responsible for all legal reports and
obligations respecting them, such as social security, income tax withholding, unemployment
compensation, worker's compensation and similar matters.
15. Safety and Accident Prevention
15.1 General: In addition to the requirements set forth in Exhibit "A", Supplier shall meet with
personnel from OCSD'S Risk Management Division to review safety and accident prevention
policies and procedures prior to its initial delivery. All subcontractors should be present at this
meeting. Supplier is responsible to inform all subcontractors of the items discussed at this
meeting. This meeting shall occur within five (5)working days of the effective date of the Notice
to Proceed. Supplier and all their employees and subcontractors, shall adhere to all applicable
Orange County Sanitation District 4 of 8 Specification No. C-2017-853BD
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OCSD Safety Standards, as well as Safety Policy SOP-607, Hazard Communication and SOP-
102, PPE and Human Resources Policies found at: OCSD.com, "Document Central", under the
heading "About Us". OCSD's Safety Standards and Human Resource Policies are hereby
incorporated by reference as though fully set forth herein in Exhibit"D".
16. Drug-Free Workplace
All employees of Supplier who will perform work under this Agreement must adhere to the
California Drug-Free Workplace Act, Government Code Sections 8350 through 8357.
17. Assianments
Neither this Agreement nor any interest herein or any claim hereunder may be assigned
by Supplier either voluntarily or by operation of law, nor may all or substantially all of this
Agreement be further subcontracted by Supplier without the prior written consent of OCSD.
18. Attorney's Fees
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements, in addition to any other relief to which it may be entitled.
19. Permits. Ordinances and Requisitions
Any and all fees required by Federal, State, County, City and/or local laws, codes and/or
tariffs that pertain to work performed under the terms of this Agreement shall be paid by Supplier.
Fees demanded for obtaining certificates, including associated inspection fees and expenses of
regulatory body inspectors shall be paid by Supplier.
20. Training Certification
When required by regulation, certificates of training shall be maintained on-site for the
duration of the activity that requires an employee of Supplier to be certified. Certificates shall be
current. Lack of certificates when required will be cause for removal of offending personnel from
the site, termination of the Agreement, or both.
21. Compliance With Law
Supplier warrants that under the performance of this Agreement, it shall comply with all
applicable Federal, State and local laws, and all lawful orders rules and regulations thereunder.
In connection with the execution of this Agreement, Supplier shall not discriminate against
employees or an applicant for employment because of race, religion, color, sex or national origin.
Supplier shall take affirmative action to ensure that applicants are employed and employees are
treated during their employment without regard to their race, religion, color, sex or national origin.
Such action shall include, but not be limited to, the following: employment, upgrading, demotion
or transfer; recruitment or recruitment advertising; lay-off or termination; rate of pay,or other forms
of compensation; and selection for training, including apprenticeship.
22. Disputes
22.1 This Agreement shall be governed by and interpreted under the laws of the State of
California and the Parties submit to jurisdiction in Orange County, in the event any action is
brought in connection with this Agreement or the performance thereof. Pending final resolution of
a dispute hereunder, Supplier shall proceed diligently with the performance of this Agreement and
in accordance with OCSD'S decision.
22.2 In the event of a dispute as to the construction or interpretation of this Agreement, or any
rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute
by mediation.The Parties shall mutually select a mediatorto facilitate the resolution of the dispute.
Orange County Sanitation District 5 of 8 Specification No. C-2017-853BD
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If the Parties are unable to agree on a mediator, the mediation shall be conducted in accordance
with the Commercial Mediation Rules of the American Arbitration Agreement, through the
alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of
Orange County ("JAMS'), or any similar organization or entity conducting an alternate dispute
resolution process.
22.3 In the event the Parties are unable to timely resolve the dispute through mediation, the
issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected, or
in the absence of Agreement, each Party shall select an arbitrator, and those two (2) arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator, or three (3)
arbitrators acting as a board, shall take such evidence and make such investigation as deemed
appropriate and shall render a written decision on the matter in question. The arbitrator shall
decide each and every dispute in accordance with the laws of the State of California. The
arbitrator's decision and award shall be subject to review for errors of fact or law in the Superior
Court for the County of Orange, with a right of appeal from any judgment issued therein.
23. Right to Review Services. Facilities. and Records
23.1 OCSD reserves the right to review any portion of the services performed by Supplier under
this Agreement, and Supplier agrees to cooperate to the fullest extent possible. Supplier shall
furnish to OCSD such reports, statistical data, and other information pertaining to Supplier's
services as shall be reasonably required by OCSD to carry out its rights and responsibilities under
its agreements with its bondholders or noteholders and any other agreement relating to the
development of the project(s) and in connection with the issuance of its official statements and
other prospectuses with respect to the offering, sale, and issuance of its bond and other
obligations.
23.2 The right of OCSD to review or approve drawings, specifications, procedures, instructions,
reports, test results, calculations, schedules, or other data that are developed by Supplier shall
not relieve Supplier of any obligation set forth herein.
24. Incorporated Documents
24.1 In the event of any conflict or inconsistency between the provisions of this Agreement and
any of the provisions of the other incorporated documents, the provisions of this Agreement shall
in all respects govern and control.
25. Severability
Any provision of this Agreement which is found to be invalid or unenforceable shall be
ineffective to the extent of such invalidity or unenforceability, and the invalidity or unenforceability
of such provision shall not affect the validity or enforceability of the remaining provisions hereof.
26. Waiver
The waiver of either Party of any breach or violation of, or default under, any provision of
this Agreement, shall not be deemed a continuing waiver by such Party of any other provision or
of any subsequent breach or violation of this Agreement or default thereunder.
27. Breach
Any breach by Supplier to which OCSD does not object shall not operate as a waiver of
OCSD to seek remedies available to it for any subsequent breach.
Orange County Sanitation District 6 of 8 Specification No. C-2017-853BD
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26. Public Contracts Law
OCSD is subject to the provisions listed in the prevailing wage determination made by the
Director of Industrial Relations pursuant to California Labor Code part 7, Chapter 1, Article 2,
Sections 1770, 1773 and 1773.1. It is agreed that all provisions of law applicable to public
contracts are part of this Agreement to the same extent as though set forth herein and will be
complied with by Supplier. Supplier shall not pay less than the prevailing wage.
29. South Coast Air Quality Management District's (SCAQMD) Requirements
It is Supplier's responsibility that all equipment furnished and installed be in accordance
with the latest rules and regulations of the South Coast Air Quality Management District
(SCAQMD). All contract work practices, which may have associated emissions shall comply with
the appropriate rules and regulations of the SCAQMD.
30. Performance
Time is of the essence in the performance of the provisions hereof.
31. Familiarity with Work
liy executing this Agreement, Supplier warrants that: 1) it has investigated the work to be
performed; 2) it has investigated the site of the work and is aware of all conditions there; and 3)it
understands the facilities, difficulties and restrictions of the work under this Agreement. Should
Supplier discover any latent or unknown conditions materially differing from those inherent in the
work or as represented by OCSD, it shall immediately inform OCSD of this and shall not proceed,
except at Supplier's risk, until written instructions are received from OCSD.
32. Damage to OCSD'S Property
Any OCSD property damaged by Supplier,any subcontractor,or by the personnel of either
will be subject to repair or replacement by Supplier at no cost to OCSD.
33. Third Party Rights
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than OCSD and Supplier.
34. Authority to Execute
The persons executing this Agreement on behalf of the Parties warrant that they are duly
authorized to execute this Agreement and that by executing this Agreement, the Parties are
formally bound.
35. Read and Understood
lay signing this Agreement, Supplier represents that it has read and understood the terms
and conditions of the Agreement.
36. Entire Agreement
This Agreement constitutes the entire agreement of the Parties and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings, and negotiations
between the Parties with respect to the subject matter hereof.
Orange County Sanitation District 7 of 8 Specification No. C-2017-853BD
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37. Notices
All notices under this Agreement must be in writing. Written notice shall be sent by
registered or certified mail, postage prepaid, return receipt requested, or by any other overnight
delivery service which delivers to the noticed destination and provides proof of delivery to the
sender. Any facsimile notice must be followed within three (3) days by written notice. All notices
shall be effective when first received at the following addresses:
OCSD: Michelle Hadaway
Senior Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708
Supplier: JCI Jones Chemicals, Inc.
1401 Del Amo Blvd.
Torrance, CA 90501
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this
Agreement to be signed by the duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT
Dated: By:
Gregory C. Sebourn, PLS
Chair, Board of Directors
Dated: By:
Clerk of the Board
Dated: By:
Contracts, Purchasing and Materials
Management Manager
JCI JONES CHEMICALS, INC.
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
Orange County Sanitation District 8 of 8 Specification No. C-2017-853BD
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EXHIBIT A
TECHNICAL SPECIFICATIONS
PURCHASE OF SODIUM HYPOCHLORITE - NaOCI (BLEACH) SOLUTION
SPECIFICATION NO. C-2017-853BD
1. Summary - The product supplied shall be Sodium Hypochlorite. The technical
specifications are as follows:
A. General Requirements:
The bleach (Sodium Hypochlorite, NaOCI) shall be liquid, shall be in accordance with
AW WA standard B300-10, and shall be meet the following specifications:
Parameter Specification
Sodium hypochlorite, weight by weight, % 12.5-15.0
Specific gravity -1.19
Free alkalinity as NaOH by weight, % 0.2 minimum, 1.0 maximum
Appearance Clear yellowish-green liquid
Available Chlorine, weight by weight , % 11.9-14.3
B. Purity Requirements:
The sodium hypochlorite shall not exceed the following concentrations of impurities:
Parameter Maximum Allowable Value
Iron, 1 2
Copper, ppm 0.1
Nickel, ppm 0.1
Manganese, ppm 0.1
Insoluble, by weight, % 0.15
Suspended solids quality test using vacuum < 3
filtration for 1 liter, with 0.8 um filter paper, 20
mm H . minutes
Product Reauirements - Orange County Sanitation District (OCSD) does not guarantee
any minimum or maximum usage of solution, but it is estimated that the annual usage at
Plant 1 and 2 will be 460,000 and 670,000 gallons, respectively for a total of 1,130,000
gallons.The quantity mentioned is an estimate only. Supplier must be able to demonstrate
they can provide 1,130,000 gallons of bleach in one year and can deliver daily. Deliveries
will be limited to a maximum of 5,000 gallons per load and allow for the load quantity to
be split for smaller, 4,000 gallon storage tanks. Multiple truckloads may be required at
both plants on any given day. Every truckload will be split typically amongst 2 or 3 storage
tanks. Supplier must include all charges associated with the contract including deliveries
to multiple chemical tanks and fuel surcharge in the unit price per gallon and/or freight per
gallon as submitted in the Bid.
Chemical shall conform to the requirements of AWWA B300-10. The product supplied
shall be of new manufacture and shall not be a reconstituted, reclaimed, or spent product.
OCSD will conduct routine analyses of delivered chemical. The supplier shall provide
EXHIBIT A 1 of 2 Specification No. C-2017-853BD
quarterly a sample report analysis which will include constituents listed under 1.A. General
Requirements and 1.B. Purity Requirements for OCSD, additional analysis maybe
required upon request by OCSD. The chemical must meet minimum specification of
bleach at the time of delivery.
OCSD reserves the right to reject a load if the concentration of that batch is not within the
specified range of Sodium hypochlorite, weight by weight 12.5% - 15%. Repeated
deviations of the product from the specifications of more than two times per calendar
month may be used as grounds for terminating the Contract.
2. Delivery of Bleach - Scheduled deliveries will be made seven days a week from 7:00
a.m. to 4:00 p.m. Under normal conditions, OCSD will provide a two-day notification,
except in emergency situations whereby a twenty-four (24) hour notice for delivery is
required.
A delivery statement shall accompany all shipments and state delivered weight, delivered
gallons, specific gravity of the product being shipped and percent Sodium Hypochlorite of
the delivered solution. A separate certificate of analysis will accompany each load with
the percent Sodium Hypochlorite and specific gravity.
Supplier must verify delivery connections type and size for the storage tanks.
OCSD's plant gates are equipped with intercoms for the purpose of announcing arrivals.
Please follow instructions- DO NOT BLOW HORNS. Please reference Chemical Delivery
Unloading Procedures, Attachment"A-2".
3. Spill Response Plan - Supplier shall have and maintain an effective spill response plan
for in plant spills and in-route spills to minimize environmental impacts. Said plan must be
forwarded in writing to OCSD within thirty days of the date of the Notice to Proceed, before
meeting with OCSD's Safety Division, and before chemical is delivered. Supplier must be
able to demonstrate drivers have been properly trained if OCSD requests records.
4. Safe — Orange County Sanitation Districts requires hard hats,safety glasses and safety
shoes be worn on the plant premises. Drivers shall comply with OCSD safety policies
while on the plant process sites.Safety equipment shall be provided by Supplier. Chemical
safety goggles are required when working in designated areas. Face shields may also be
required to be worn when working around pressured chemical systems at connections,
disconnections, adjustments and observations. It is the responsibility of Supplier to inform
the delivery truck drivers of this obligation and train them in these requirements. Drivers
must review the safety shower and eye wash locations prior to off-loading chemicals. Lack
of safety equipment or failure to use safety equipment will be cause for resection of the
product and/or termination of the Contract.
A meeting with personnel from OCSD's Safety and Emergency Response Department will
be required before start of work under this Contract.
EXHIBIT A 2 of 2 Specification No. C-2017-853BD
Exhibit B
Orange County Sanitation District Peg.t
Purchase of Sodium Hypochlonte—NaOCI(Bleach)Solution(C2017-8538O),bidding on May 16,2017 2:00 PM Primed 0511612017
Bid Results
3 Bid Results
Bidder Details
Vendor Name JCI Jones Chemicals,Inc.
Address 1401 Del Amo Blvd
1401 Del Amo Blvd
Torrance,CA 90501
United States
Responsve Colleen DUBose
Respondent Title Sales Coordinator
Phone 310-523-1629 EA.
Email cduboseQcIchem.ccm
Vendor Type
Bid Detail
Bid Format Electronic
Submitted May 15.2017 2:26:40 PM(Padfic)
Delivery Method JCI Tanker Tmcks/2 Days ARO
Bid Responsive
Did Status Submitted
Confirmation 9 105806
Ranking 0
Respondee Comment
Buyer Comment
Attachments
File Title File Name File Type
Exhibit C and G OCSD Exhibit C and G.pdf General Attachment
Line Items
Discount Terms nodiscount
Type Item Code UOM city Unit price Line Total Discount Comment
Total cost for estimated 1,130,000 Gallons usage(Sodium Hypochlorito—NeOCI(Bleach)Solution),delivered(F.O.B.
Destination),excluding applicable Sales Tax
1 Product Cost-Unit Price per Gallon (Excluding Applicable Sales Tax)
Gallon 1130000 $0.5100 5576,300.0000 $576.300.0000 $0.51 Gal Delivered
2 Freight Cost(Delivered-F.O.B.Destination)Per Gallon
Gallon 1130000 0 0 0
Subtotal $576.300.0000 $576,300.0000
Torsi 1576,300.0000 $576,300.0000
Plan.tSids.Inc.
Orange County Sanitation District(OCSD)
10844 Ellis Avenue, Fountain Valley, CA 92708-7018
Phone (714) 962-2411 Fax (714) 593-7784
ACKNOWLEDGMENT OF INSURANCE REQUIREMENTS`
A CE FICATION OF ABILITY TO P OVIDE AND MAINTAIN COVERAGES SPECIFIED
1, /M �S , the es� Coos-f- V Pre4,d,l
T J (President,Secretary, Manager, Owner or Representative)
of J _Tv 5 CIfCA/IICa15 , certify that the Specifications and
(Name of Company, Corporation or Owner)
General Provision regardi nce requirements as stated below, for the Purchase Contract designated
Specification No. 2401 — insura�")�]� . have been read and understood and that our fine, as bidder on this
project, is ble to provide and maintain the coverage as specified below. If the awarded bidder fails to Provide
Said cov a this shall be sufficient cause for contract termination. Failure to maintain said coverage shall result
in temli 'on o_f the ard-ed/bidders contract.
�✓ Dater
(Signature of Prebident Owner or Authorized Company Representative)
Return the signed Acknowledgement to the Buyer handling the bid/RFP.
INSURANCE REQUIREMENTS
'WE STRONGLY RECOMMEND THIS SHEET BE GIVEN TO YOUR INSURANCE AGENTIBROKER IMMEDIATELY TO ENSURE
YOUR FIRM CAN COMPLY WITH OUR REQUIREMENTS IN THE EVENT YOUR FIRM IS AWARDED THE CONTRACT
Once you have been awarded the contract please provide us with a certificate of insurance and supporting
endorsements as described below. The actual endorsements(see Proof of Coverage below for specific form
numbers)must be provided-a statement on an insurance certificate will not be accepted in lieu of the actual
endorsement We prefer to receive original electronic documents in PDF format via a-mall to
rkleinmanfa)ocsd.com. Only if you cannot send electronic carts and endorsements will we accept hard
copies sent to Randall Kleinman,Orange County Sanitation District,Div.260,10844 Ellis Avenue,Fountain
Valley,CA 92708.
Faxed copies are not considered original documents;your insurance is not considered in compliance until all originals are
received.
1. WORKER'S COMPENSATION INSURANCE:
The Vendor shall provide such Workers Compensation Insurance as required by the Labor Code of the State of California,
including Employers Liability Insurance with a minimum limit of$1,000,000.00. Such Workers Compensation Insurance shall
be endorsed to provide for a waiver of subrogation in favor of OCSO. A statement on an Insurance certificate will not be
accepted in lieu of the actual endorsements unless your Insurance carrier is State of California Insurance Fund(SCIF
and the endorsement numbers 2570 and 2066 are referenced on the certificate of insurance.
2. GENERAL LIABILITY INSURANCE:
The Vendor shall maintain during the life of this contract,including the period of warranty,Commercial General Liability
Insurance written on an occurrence basis providing the following minimum limits of liability coverage:$5.0 million per
occurrence with$5.0 million aggregate or$5.0 million per occunencelaggregate separate for this contract. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual liability(for this Agreement),products
liability/completed operations(including any product manufactured or assembled),broad form property damage,blanket
contractual liability, independent contractors liability,personal and advertising injury, mobile equipment cross liability and
severability,of interest dauses.A statement on an insurance certificate will not be accepted in lieu of the actual additional
Insured endomement(s). If requested by OCSD and applicable,XCU coverage(Explosion, Collapse and Underground)
ReV.032217,k
Level III ChenucarHazaMous
Including POW.Uab9ily
Willi Agreement
This Affidavit To Be Fully Executed
Nan-Collusion Affidavit
State Of �t �IrurrlrcZ
) Ss.
County Of -b s Awi e5 )
lm Zo5S Beinq Firpt Duly She Sworn,
Deposes And Says That He G Is t rP3 Of
TC� Sow5 CWMI':4-S'TNC . The Party Making The
Bid, That The Bid Is Not Made In The Interest Of, Or On Behalf Of, Any Undisclosed Person,
Partnership, Company, Association, Organization, Or Corporation; That The Bid Is Genuine And
Not Collusive Or Sham; That The Bidder Has Not Directly Or Indirectly Induced Or Solicited Any
Other Bidder To Put In A False Or Sham Bidder, And Has Not Directly Or Indirectly Colluded,
Conspired, Connived, Or Agreed With Any Bidder Or Anyone Else To Put In A Sham Bid, Or That
Anyone Shall Refrain From Submitting A Bid; That The Bidder Has Not In Any Manner, Directly
Or Indirectly,Sought By Agreement, Communication, Or Conference With Anyone To Fix The Bid
Price Of The Bidder Or Any Other Bidder, Or To Fix Any Overhead, Profit, Or Cost Element Of
The Bid Price, Or Of That Of Any Other Bid, Or To Secure Any Advantage Against The Public
Body Awarding The Contract Of Anyone Interested In The Proposed Contract; That All
Statements Contained In The Bid Are True; And, Further, That The Bidder Has Not, Directly Or
Indirectly, Submitted His Or Her Bid Price Or Any Breakdown Thereof, Or The Contents Thereof,
Or Divulged Information Or Data Relative Thereto, Or Paid, And Will Not Pay Any Fee To Any
Corporation, Partnership, Company Association, Organization, Bid Depository, Or To Any
Member Or Agent Thereof To Effectuate A Collusive Or Sham Bid.
I Declare Under Penalty Of Perjury Under a Laws Of The State Of California That The
Foregoing Is True And Correct
1,
Signature Of. President,
Secretary, Manager,
Owner Or
Representative
Subscribed And Sworn To Before Me
This , Day Of 20-L-7
Signature Of Notary P blic In And For caiee uueasE
"°rco ss H'
The County Of , ins.Hceuscauxrr
cm.n. ..pmnrss.mn
State Of
All Signatures Must Be Witnessed By Notary
EXHIBIT G Specification No. C-2017-853BD
OPERATIONS COMMITTEE Meeting Date To6d.of Dir.
07/05/17 07/26/17
AGENDA REPORT I em Number Item Number
6
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Ed Torres, Director of Operations and Maintenance
SUBJECT: REPAIR & REFURBISHMENT OF TWO CENTRAL GENERATION
ELECTRICAL GENERATORS, SPECIFICATION NO. S-2017-85OBD
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Service Contract to R.A. Reed Electric Company, the lowest
responsive and responsible bidder, for Repair & Refurbishment of two Central
Generation Electrical Generators, Specification No. S-2017-85013D, for an
amount not to exceed $424,538.62; and
B. Approve a contingency of$84,908 (20%).
BACKGROUND
Orange County Sanitation District (Sanitation District) operates eight Central Generation
(CenGen) generators, between both treatment plants, that meet approximately
two-thirds of our electric demand and most of our heating demand. Sanitation District
staff conducts routine maintenance of the electrical generators; however, refurbishment
and repairs are contracted due to specialized service and equipment requirements.
RELEVANT STANDARDS
• Protection of Orange County Sanitation District assets
• Consider life-cycle costs in all decisions
• Use all practical and effective means for recovering energy
• 24/7/365 treatment plant reliability
PROBLEM
The CenGen Electrical Generator No. 2 at Plant No. 2 is oftline due to winding failure
and requires repairs to restore it to service. In addition to the repairs, Generator No. 2
will also be refurbished.
The remaining seven CenGen electrical generators are fully operational, but are
reaching 125,000 hours of service and should be refurbished to ensure continued
reliable operation.
Page 1 of 3
PROPOSED SOLUTION
Contract with R.A. Reed Electric Company to repair and refurbish CenGen Generator
No. 2 at Plant No. 2, and refurbish a second CenGen Generator at Plant No. 2. Staff
will develop a separate contract to refurbish the remaining six CenGen Generators over
a two to three-year period.
TIMING CONCERNS
Timely refurbishment of the CenGen generators is required to reduce the risk of failure.
RAMIFICATIONS OF NOT TAKING ACTION
Increased use of the generators without conducting these refurbishments will lead to
electrical failure resulting in costly repairs and increased purchased power costs,
especially during the summer peak power season.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
This contract was competitively bid with three prospective bidders attending the
mandatory job walk with two bids being received by the Sanitation District. The
information on the two bidders is listed below. Staff recommends that R.A. Reed
Electric Company be awarded the CenGen repair and refurbishment contract as the
lowest responsive and responsible bidder.
Bidder Total Cost
R.A. Reed Electric Company $424,538.62
Integrated Power Services $494,068
A 20% contingency is requested for this effort due to the likelihood of potentially
unforeseen repair requirements that may be discovered during the refurbishments.
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted in the Division 870/880 budgets (Line
item:Repairs and Maintenance; Section 6, pages 92 and 96). Project contingency funds
will be used for this agreement.
Page 2 of 3
Date of Approval Contract Amount Contingency
0 712 612 01 7 $424,538.62 $94,908
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (wwwocsd.com) with the
complete agenda package and attachments:
• Service Contract
Page 3 of 3
SERVICE CONTRACT
Repair and Refurbishment of CenGen Electrical Generators
Specification No. S-2017-85OBD
THIS CONTRACT is made and entered into as of the date fully executed below, by and between
Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue,
Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and R.A. Reed Electric
Company with a principal place of business at 5503 South Boyle Avenue, Los Angeles, CA 90058,
(hereinafter referred to as"Contractor") collectively referred to as the "Parties".
WITNESSETH
WHEREAS, OCSD desires to retain the services of Contractor for repair and refurbishment of
CenGen Electrical Generators No. 2 & 3 at Plant No. 2 "Services"; and
WHEREAS, OCSD has chosen Contractor to conduct Services in accordance with Ordinance No.
OCSD-47; and
WHEREAS, on July 26, 2017, the Board of Directors of OCSD, by minute order, authorized
execution of this Contract between OCSD and Contractor; and
WHEREAS, Contractor is qualified by virtue of experience, training, and education and expertise
to accomplish such Services,
NOW THEREFORE, in consideration of the promises and mutual benefits exchanged between
the Parties, it is mutually agreed as follows:
1. Introduction
1.1 This Contract and all exhibits hereto (called the "Contract") is made by OCSD and
Contractor. The Terms and Conditions herein exclusively govern the purchase of Services as
described in the Scope of Work, attached hereto and incorporated herein by reference as Exhibit
"A",
1.2 Exhibits to this Contract are incorporated by reference and made a part of this Contract
as though fully set forth at length herein. Exhibits to this Contract are as follows in order of
precedence:
Exhibit"A" Scope of Work(including Addendum No. 1 issued on May 18, 2017)
Exhibit"B" Bid from Contractor
Exhibit "C" Acknowledgement of Insurance Requirements
Exhibit "D" OCSD Safety Standards
Exhibit"E-J" Not Used
Exhibit X' Performance Bond
Exhibit"L" Labor and Material Bond
1.3 In the event of any conflict or inconsistency between the provisions of this Contract and
any of the provisions of the exhibits hereto, the provisions of this Contract shall in all respects
govern and control.
Orange County Sanitation District 1 of 10 Specification No. S-2017-85OBD
1.4 The provisions of this Contract may be amended or waived only by a writing executed by
authorized representatives of both Parties hereto.
1.5 The various headings in this Contract are inserted for convenience only and shall not affect
the meaning or interpretation of this Contract or any Paragraph or provision hereof.
1.6 The term "days", when used in the Contract, shall mean calendar days, unless otherwise
noted as business days.
1.7 OCSD holidays (non-working days) are as follows: New Year's Day, Lincoln's Birthday,
President's Day, Memorial Day, Independence Day, Labor Day,Veterans Day,Thanksgiving Day,
Day after Thanksgiving, Christmas Eve, and Christmas Day.
1.8 The term "work days", when used in this Contract, shall be as defined herein. Unless
otherwise noted in Exhibit A, Scope of Work, the awarded Contractor will schedule work through
OCSD's Project Manager. Contractor will not come on site unannounced. All work shall be
scheduled Monday through Thursday, between 0600 and 1630 hours (Addendum No. 1 issued
May 18, 2017). OCSD will not pay travel time. Refer to Exhibit"A"for the project schedule.
1.9 Contractor shall provide OCSD with all required premiums and/or overtime work at no
charge beyond the price provided under"Compensation" below.
1.10 Except as expressly provided otherwise, OCSD accepts no liability for any expenses,
losses,or action incurred or undertaken by Contractor as a result of work performed in anticipation
of purchases of said services by OCSD.
2. Compensation Compensation to be paid by OCSD to Contractor for Services under this
Contract for a firm fixed price not to exceed the total amount of Four Hundred Twenty-Four
Thousand Five Hundred Thirty-Eight and 62100 Dollars ($424,538.62).
3. California Department of Industrial Relations (DOReaistration and Record of
Wanes
3.1 To the extent Contractor's employees and/or its subcontractors who will perform Work
during the design and preconstruction phases of a construction contract for which Prevailing
Wage Determinations have been issued by the DIR and as more specifically defined under Labor
Code Section 1720 at seq, Contractor and its subcontractors shall comply with the registration
requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section 1771.4, the Work
is subject to compliance monitoring and enforcement by the DIR.
3.2 The Contractor and its subcontractors shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records to the
Labor Commissioner pursuant to Labor Code 1771.4(a)(3). Penalties for non-compliance with
the requirements of Section 1776 may be deducted from progress payments per Section 1776.
3.3 Pursuant to Labor Code Section 1776, the Contractor and its subcontractors shall furnish
a copy of all certified payroll records to OCSD and/or general public upon request, provided the
public request is made through OCSD, the Division of Apprenticeship Standards or the Division
of Labor Enforcement of the Department of Industrial Relations.
Orange County Sanitation District 2 of 10 Specification No. S-2017-8508D
3.4 The Contractor and its subcontractors shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of Regulation
Section 16461(e).
4. Payments Payments shall be made on a lump sum basis per completion of each item as
defined in Exhibit"B" and upon approval by OCSD Project Manager, or his designee, of invoices
submitted for Services as described in Exhibit "A". OCSD, at its sole discretion, shall be the
determining party as to whether the work and deliverables listed below have been satisfactorily
completed.
5. Invoices
5.1 OCSD shall pay within 30 days of completion and receipt and approval by OCSD Project
Manager of an itemized invoice, in a form acceptable to OCSD to enable audit of the charges
thereon. Invoices shall include the Purchase Order Number.
5.2 Invoices shall be emailed by Contractor to OCSD Accounts Payable at
APStaff(a)OCSD.com and reference the following in the subject line: 'INVOICE", the Purchase
Order number, the Project Manager, and Specification No. S-2017-85013D.
6. Audit Rights Contractor agrees that, during the term of this Contract and for a period of
three (3) years after its termination, OCSD shall have access to and the right to examine any
directly pertinent books, documents, and records of Contractor relating to the invoices submitted
by Contractor pursuant to this Contract.
7. Scone of Work Subject to the terms of this Contract, Contractor shall perform the
Services attached hereto and incorporated herein Exhibit "A". Contractor shall perform said
Services in accordance with generally accepted industry and professional standards.
8. Modifications to Scone of Work Requests for modifications to the Scope of Work
hereunder can be made by OCSD at any time. All modifications must be made in writing and
signed by both Parties.
9. Contract Term The Services provided under this Contract shall be completed within
eighteen (18)weeks from the effective date of the Notice to Proceed.
10. Renewals N/A
11. Termination
11.1 OCSD reserves the right to terminate this Contract for its convenience, with or without
cause, in whole or in part, at any time, by written notice from OCSD of intent to terminate. Upon
receipt of a termination notice, Contractor shall immediately discontinue all work under this
Contract(unless the notice directs otherwise). OCSD shall thereafter, within thirty(30) days, pay
Contractor for work performed (cost and fee) to the date of termination. Contractor expressly
waives any claim to receive anticipated profits to be earned during the uncompleted portion of
this Contract. Such notice of termination shall terminate this Contract and release OCSD from
any further fee, cost or claim hereunder by Contractor other than for work performed to the date
of termination.
Orange County Sanitation District 3 of 10 Specification No. S-2017-8508D
11.2 OCSD reserves the right to terminate this Contract immediately upon OCSD's
determination that Contractor is not meeting specification requirements, if the level of service is
inadequate, or any other default of this Contract.
11.3 OCSD may also immediately cancel for default of this Contract in whole or in part by
written notice to Contractor:
• if Contractor becomes insolvent or files a petition under the Bankruptcy Act; or
• if Contractor sells its business; or
• if Contractor breaches any of the terms of this Contract; or
• if total amount of compensation exceeds the amount authorized under this Contract.
11.4 All OCSD property in the possession or control of Contractor shall be returned by
Contractor to OCSD upon demand, or at the termination of this Contract, whichever occurs first.
12. Insurance Contractor and all subcontractors shall purchase and maintain,throughout the
life of this Contract and any periods of warranty or extensions, insurance in amounts equal to the
requirements set forth in the signed Acknowledgement of Insurance Requirements (attached
hereto and incorporated herein as Exhibit "C"). Contractor shall not commence work under this
Contract until all required insurance is obtained in a form acceptable to OCSD, nor shall
Contractor allow any subcontractor to commence service pursuant to a subcontract until all
insurance required of the subcontractor has been obtained. Failure to maintain required
insurance coverage shall result in termination of this Contract.
13. Bonds
Contractor shall, before entering upon the performance of this Contract, furnish bonds (attached
hereto in Exhibits "K" and "L") approved by OCSD's General Counsel -one in the amount of one
hundred percent (100%) of the Contract price bid, to guarantee the faithful performance of the
work, and the other in the amount of one hundred percent (100%) of the Contract price bid, to
guarantee payment of all claims for labor and materials furnished. This Contract shall not become
effective until such bonds are supplied to and approved by OCSD. Bonds must be issued by a
California admitted surety insurance and must be maintained throughout the life of the project and
during the warranty period.
14. Indemnification and Hold Harmless Provision Contractor shall assume all
responsibility for damages to property and/or injuries to persons,including accidental death,which
may arise out of or be caused by Contractor's services under this Contract, or by its subcontractor
or by anyone directly or indirectly employed by Contractor, and whether such damage or injury
shall accrue or be discovered before or after the termination of the Contract. Except as to the
sole active negligence of or willful misconduct of OCSD, Contractor shall indemnify, protect,
defend and hold harmless OCSD, its elected and appointed officials, officers, agents and
employees, from and against any and all claims, liabilities, damages or expenses of any nature,
including attorneys' fees: (a) for injury to or death of any person or damage to property or
interference with the use of property, arising out of or in connection with Contractor's performance
under the Contract, and/or (b) on account of use of any copyrighted or uncopyrighted material,
composition, or process, or any patented or unpatented invention, article or appliance, furnished
or used under the Contract, and/or(c) on account of any goods and services provided under this
Contract. This indemnification provision shall apply to any acts or omissions, willful misconduct,
or negligent misconduct, whether active or passive, on the part of Contractor of or anyone
employed by or working under Contractor. To the maximum extent permitted by law, Contractor's
Orange County Sanitation District 4 of 10 Specification No. S-2017-85OBD
duty to defend shall apply whether or not such claims, allegations, lawsuits, or proceedings have
merit or are meritless,or which involve claims or allegations that any of the parties to be defended
were actively, passively, or concurrently negligent, or which otherwise assert that the parties to
be defended are responsible, in whole or in part, for any loss, damage, or injury. Contractor
agrees to provide this defense immediately upon written notice from OCSD, and with well
qualified, adequately insured, and experienced legal counsel acceptable to OCSD.
15. Safety Standards and Human Resources (HR) Policies OCSD requires all contractors
and service providers to follow and ensure their employees and all subcontractors follow all State
and Federal regulations as well as OCSD requirements while working at OCSD locations. If
during the course of a contract it is discovered that OCSD policies, safety manuals, or contracts
do not comply with State or Federal regulations then the Contractor is required to follow the most
stringent regulatory requirement at no cost to OCSD. Contractor and all their employees and
subcontractors, shall adhere to all applicable OCSD Safety Standards and Human Resources
Policies, as well as Safety Policy SOP-102, PPE; SOP-605 LOTO; and SOP-205, Electrical
Safety found at: OCSD.com, "Document Central", under the heading "About Us". OCSD's Safety
Standards and Human Resource Policies are hereby incorporated by reference as though fully
set forth herein in Exhibit"D".
16. Warranties In addition to the Warranties stated in Exhibit"A", the following shall apply:
16.1 Manufacturer's standard warranty shall apply. All manufacturer warranties will begin at
date of completion of this Contract.
16.2 Contractor's warranty: The Contractor agrees to perform all Work under this Contract in
accordance with the Contract Documents. The Contractor guarantees for a period of at least one
(1)year from the date of Acceptance of the Test Run as defined in Exhibit"A"that the completed
work is free from all defects due to faulty materials, equipment or workmanship and that it shall
promptly make whatever adjustments or corrections which may be necessary to cure any defects,
including repairs of any damage to other parts of the system resulting from such defects at its
sole expense.
OCSD shall promptly give notice to the Contractor of observed defects. In the event that the
Contractor fails to make adjustments, repairs, corrections or other work made necessary by such
defects, OCSD may do so and charge the Contractor the cost incurred. The Contractors warranty
shall continue as to any corrected deficiency until the later of(1)the remainder of the original one-
year warranty period; or (2) one year after acceptance by OCSD of the corrected work. The
Performance Bond and the Payment Bond shall remain in full force and effect through the
warranty period.
The Contractor's obligations under this clause are in addition to the Contractors other express or
implied assurances under this Contract, including but not limited to specific manufacturer,or state
law and in no way, diminish any other rights that OCSD may have against the Contractor for faulty
materials, equipment, or Work.
17. Performance Time is of the essence in the performance of this Contract and the
provisions hereof.
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18. Force Maieure Neither party shall be liable for delays caused by accident, flood, acts of
God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said
party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force
Majeure condition may be rescheduled by mutual consent or may be eliminated from the Contract.
19. Freight(F.O.B. Destination) Contractor assumes full responsibility for all transportation,
transportation scheduling, packing, handling, insurance, and other services associated with
delivery of all products deemed necessary under this Contract.
20. Familiarity with Work By executing this Contract, Contractor warrants that: 1) it has
investigated the work to be performed; 2) it has investigated the site of the work and is aware of
all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work
under this Contract. Should Contractor discover any latent or unknown conditions materially
differing from those inherent in the work or as represented by OCSD, it shall immediately inform
OCSD of this and shall not proceed, except at Contractor's risk, until written instructions are
received from OCSD.
21. Reaulatory Reauirements Contractor shall perform all work under this Contract in strict
conformance with applicable federal, state, and local regulatory requirements including, but not
limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and California Water
Codes Division 2.
22. Licenses, Permits. Ordinances and Regulations Contractor represents and warrants
to OCSD that it has obtained all licenses, permits, qualification and approvals of whatever nature
that are legally required to engage in this work. Any and all fees required by State, County, City
and/or municipal laws, codes and/or tariffs that pertain to work performed under the terms of this
Contract will be paid by Contractor.
23. Applicable Laws and Regulations Contractor shall comply with all applicable Federal,
State, and local laws, rules, and regulations. Contractor also agrees to indemnify and hold
harmless from any and all damages and liabilities assessed against OCSD as a result of
Contractor's noncompliance therewith. Any permission required by law to be included herein shall
be deemed included as a part of this Contract whether or not specifically referenced.
24. Contractor's Employees Compensation
24.1 Davis-Bacon Act— Not Used
24.2 General Prevailing Rate — OCSD has been advised by the State of California Director of
Industrial Relations of its determination of the general prevailing rate of per diem wages and the
general prevailing rate for legal holiday and overtime work in the locality in which the work is to
be performed for each craft or type of work needed to execute this Contract, and copies of the
same are on file in the office of the engineer of OCSD. The Contractor agrees that not less than
said prevailing rates shall be paid to workers employed on this Contract as required by Labor
Code Section 1774 of the State of California. Per California Labor Code 1773.2, OCSD will have
on file copies of the prevailing rate of per diem wages at its principal office and at each job site,
which shall be made available to any interested party upon request.
24.3 Forfeiture For Violation - Contractor shall, as a penalty to OCSD, forfeit fifty dollars
($50.00) for each calendar day or portion thereof for each worker paid (either by the Contractor
or any subcontractor under it)less than the prevailing rate of per diem wages as set by the Director
Orange County Sanitation District 6 of 10 Specification No. S-2017-85OBD
of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for
the work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of
the State of California.
24.4 Apprentices — Sections 1777.5, 1777.6, 1777.7 of the Labor Code of the State of
California, regarding the employment of apprentices are applicable to this Contract and the
Contractor shall comply therewith if the prime Contract involves thirty thousand dollars
($30,000.00)or more or twenty (20)working days or more; or if contracts of specialty contractors
not bidding for work through the general or prime Contractor are two thousand dollars($2,000.00)
or more or five (5)working days or more.
24.5 Workday — In the performance of this Contract, not more than eight (8) hours shall
constitute a day's work, and the Contractor shall not require more than eight (8) hours of labor in
a day from any person employed by him hereunder except as referenced above. Contractor shall
conform to Article 3, Chapter 1, Part 7 (Section 1810 at seq.) of the Labor Code of the State of
California and shall forfeit to OCSD as a penalty, the sum of twenty five dollars ($25.00)for each
worker employed in the execution of this Contract by Contractor or any subcontractor for each
calendar day during which any worker is required or permitted to labor more than eight (8) hours
in any one calendar day and forty (40) hours in any one week in violation of said Article.
Contractor shall keep an accurate record showing the name and actual hours worked each
calendar day and each calendar week by each worker employed by Contractor in connection with
the project.
24.6 Record of Wages; Inspection - Contractor agrees to maintain accurate payroll records
showing the name, address, social security number, work classification, straight-time and
overtime hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by it in connection with the project
and agrees to require that each of its subcontractors do the same. All payroll records shall be
certified as accurate by the applicable Contractor or subcontractor or its agent having authority
over such matters. Contractor further agrees that its payroll records and those of its
subcontractors shall be available to the employee or employee's representative, the Division of
Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply
with all of the provisions of Labor Code Section 1776, in general. Penalties for non-compliance
with the requirements of Section 1776 may be deducted from project payments per the
requirements of Section 1776.
25. South Coast Air Quality Management District's (SCAQMD) Requirements It is
Contractor's responsibility that all equipment furnished and installed be in accordance with the
latest rules and regulations of the South Coast Air Quality Management District (SCAQMD). All
Contract work practices, which may have associated emissions such as sandblasting, open field
spray painting or demolition of asbestos containing components or structures, shall comply with
the appropriate rules and regulations of the SCAQMD.
26. Govemina Law This Contract shall be governed by and interpreted under the laws of the
State of California and the Parties submit to jurisdiction in Orange County, in the event any action
is brought in connection with this Contract or the performance thereof.
Orange County Sanitation District 7 of 10 Specification No. S-2017-850BD
27. Breach The waiver of either party of any breach or violation of, or default under, any
provision of this Contract, shall not be deemed a continuing waiver by such party of any other
provision or of any subsequent breach or violation of this Contract or default thereunder. Any
breach by Contractor to which OCSD does not object shall not operate as a waiver of OCSD's
rights to seek remedies available to it for any subsequent breach.
28. Remedies In addition to other remedies available in law or equity, if the Contractor fails
to make delivery of the goods or Services or repudiates its obligations under this Contract, or if
OCSD rejects the goods or Services or revokes acceptance of the goods or Services, OCSD may
(1) cancel the Contract; (2) recover whatever amount of the purchase price OCSD has paid,
and/or (3) "cover' by purchasing, or contracting to purchase, substitute goods or Services for
those due from Contractor. In the event OCSD elects to"cover' as described in (3), OCSD shall
be entitled to recover from Contractor as damages the difference between the cost of the
substitute goods or Services and the Contract price,together with any incidental or consequential
damages.
29. Dispute Resolution
29.1 In the event of a dispute as to the construction or interpretation of this Contract, or any
rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute
by mediation. The Parties shall mutually select a mediator to facilitate the resolution of the
dispute. If the Parties are unable to agree on a mediator, the mediation shall be conducted in
accordance with the Commercial Mediation Rules of the American Arbitration Agreement,through
the alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of
Orange County ("JAMS"), or any similar organization or entity conducting an alternate dispute
resolution process.
29.2 In the event the Parties are unable to timely resolve the dispute through mediation, the
issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected,
or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator,or three arbitrators
acting as a board, shall take such evidence and make such investigation as deemed appropriate
and shall render a written decision on the matter in question. The arbitrator shall decide each
and every dispute in accordance with the laws of the State of California. The arbitrator's decision
and award shall be subject to review for errors of fact or law in the Superior Court for the County
of Orange, with a right of appeal from any judgment issued therein.
30. Attorney's Fees If any action at law or inequity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this
Contract, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
31. Survival The provisions of this Contract dealing with Payment, Warranty, Indemnity, and
Forum for Enforcement, shall survive termination or expiration of this Contract.
32. Severability If any section, subsection, or provision of this Contract, or any agreement
or instrument contemplated hereby, or the application of such section, subsection, or provision is
held invalid, the remainder of this Contract or instrument in the application of such section,
Orange County Sanitation District 8 of 10 Specification No. S-2017-8508D
subsection or provision to persons or circumstances other than those to which it is held invalid,
shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate
the expectations of the Parties.
33. Damage to OCSD's Pronertv Any of OCSD's property damaged by Contractor, any
subcontractors or by the personnel of either will be subject to repair or replacement by Contractor
at no cost to OCSD.
34. Disclosure Contractor agrees not to disclose, to any third party, data or information
generated from this project without the prior written consent from OCSD.
35. Independent Contractor The legal relationship between the parties hereto is that of an
independent contractor, and nothing herein shall be deemed to make Contractor an OCSD
employee. During the performance of this Contract, Contractor and its officers, employees, and
agents shall act in an independent capacity and shall not act as OCSD's officers, employees, or
agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits
which accrue to OCSD's employees.
36. Limitations upon Subcontractina and Assignment Contractor shall not delegate any
duties nor assign any rights under this Contract without the prior written consent of OCSD. Any
such attempted delegation or assignment shall be void.
37. Third Party Rights Nothing in this Contract shall be construed to give any rights or
benefits to anyone other than OCSD and Contractor.
38. Non-Liability of OCSD Officers and Employees No officer or employee of OCSD shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or
breach by OCSD or for any amount which may become due to Contractor or to its successor, or
for breach of any obligation for the terms of this Contract.
39. Read and Understood By signing this Contract, Contractor represents that he has read
and understood the terms and conditions of the Contract.
40. Authority to Execute The persons executing this Contract on behalf of the Parties
warrant that they are duly authorized to execute this Contract and that by executing this Contract,
the Parties are formally bound.
41. Entire Contract This Contract constitutes the entire agreement of the Parties and
supersedes all prior written or oral and all contemporaneous oral agreements, understandings,
and negotiations between the Parties with respect to the subject matter hereof.
Orange County Sanitation District 9 of 10 Specification No. S-2017-850BD
42. Notices All notices under this Contract must be in writing. Written notice shall be
delivered by personal service or sent by registered or certified mail, postage prepaid, return
receipt requested, or by any other overnight delivery service which delivers to the noticed
destination and provides proof of delivery to the sender. Rejection or other refusal to accept or
the inability to deliver because of changed address for which no notice was given as provided
hereunder shall be deemed to be receipt of the notice, demand or request sent. All notices shall
be effective when first received at the following addresses:
OCSD: Michelle Hadaway
Senior Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
CONTRACTOR: R.A. Reed Electric Company
5503 S. Boyle Ave.
Los Angeles, CA 90058
Each party shall provide the other party written notice of any change in address as soon as
practicable.
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this
Contract to be signed by the duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT
Dated: By:
Gregory C. Sebourn,
PLS Chair, Board of Directors
Dated: By:
Clerk of the Board
Dated: By:
Contracts, Purchasing and
Materials Management Manager
R.A. REED ELECTRIC COMPANY
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
Orange County Sanitation District 10 of 10 Specification No. S-2017-85OBD
OPERATIONS COMMITTEE Meeting Date Ta Bd.of Dir.
07/05/17 07/26/17
AGENDA REPORT emNumber IemNumber
7
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: STORMWATER MASTER PLAN - PROJECT NO. PS16-01
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Professional Services Agreement with Michael Baker International, Inc.
to provide engineering services for the Stormwater Master Plan, Project No.
PS16-01, for an amount not to exceed $715,300; and
B. Approve a contingency of$71,530 (10%).
BACKGROUND
The Orange County Sanitation District (Sanitation District) is authorized to discharge
under a National Pollutant Discharge Elimination System (NPDES) permit issued by the
Santa Ana Regional Water Quality Control Board and United States Environmental
Protection Agency. The NPDES permit has limitations on discharge requirements,
monitoring and reporting requirements, and other provisions to ensure that the discharge
does not harm water quality or public health.
The NPDES permit requires all stormwater flows that fall within the Sanitation District
facilities be captured and treated before being discharged to the Pacific Ocean. The
NPDES permit also requires the Sanitation District to develop and manage an on-site
stormwater program.
The 2005 Stormwater Master Plan identified recommendations related to policy and
regulatory requirements, design criteria, and development of a stormwater diversion
implementation plan. The 2005 Stormwater Master Plan considered Sanitation District
Plant Nos. 1 and 2 facilities, but did not consider off-site pump stations. Since 2005,
multiple large-scale projects have demolished old structures and built new treatment
facilities, radically affecting the footprint and the drainage areas at both plants.
RELEVANT STANDARDS
• Meet discharge permit 24/7/365
• 1, 5, 20 year planning horizons
• CA Government Code Section 4526: Select the "best qualified firm'and "negotiate
fair and equitable fees"
Page 1 of 5
PROBLEM
The existing stormwater policies, procedures, and practices of the Sanitation District are
outdated and need to be revised and further developed to be in alignment with the current
NPDES permit requirements. The numerous physical changes to the plant facilities
require a re-evaluation of drainage and collection facilities to avoid the potential for
off-site runoff. In addition, all pump station facilities need to be evaluated to ensure all
stormwater flows are captured and treated without leaving the sites.
PROPOSED SOLUTION
The Stormwater Master Plan, Project No. PS16-01, will update the 2005 Stormwater
Master Plan to ensure compliance with current regulations. Consultant scope includes
development of stormwater management documents, revision of Sanitation District's
design standards, assessment of the capacity of stormwater drainage and collection
facilities in off-site pump stations and within the treatment plants, and recommendations
for improvements to ensure that facilities can handle the design peak flows.
TIMING CONCERNS
The Sanitation District is required to stay current with changing regulations. The results
of this work will be incorporated in upcoming design projects to ensure the Sanitation
District complies with its NPDES permit requirements.
RAMIFICATIONS OF NOT TAKING ACTION
Potential for non-compliance with the NPDES permit requirements for stormwater
management.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
Consultant Selection:
The Sanitation District requested and advertised for proposals for Stormwater Master
Plan, Project No. PS16-01, on December 8, 2016. The following evaluation criteria was
described in the Request for Proposals and used to determine the most qualified
Consultant.
CRITERION WEIGHT
Project Understanding and Approach 40%
Related Project Experience 25%
Project Team and Staff Qualifications 35%
Page 2 d 5
Four proposals were received on February 22, 2017 and evaluated in accordance with the
evaluation process set forth in Sanitation District Board of Directors' Purchasing Ordinance
No. OCSD47 (Purchasing Ordinance), by a pre-selected Evaluation Team consisting of
the following Sanitation District staff.
Brian Bingman Engineering Supervisor— Construction
Lisa Frigo Environmental Supervisor— Laboratory and Ocean Monitoring
Victoria Pilko CIP Project Manager— Project Management Office
Ted Vitko Engineer— Planning
The Evaluation Team also included two non-voting representatives from the Contracts
Administration Division and one non-voting technical advisor from Sanitation District staff.
Following scoring by the Evaluation Team, two Consultants were shortlisted for interviews
conducted on March 29, 2017. Following the interviews, each member of the Evaluation
Team ranked the Consultants based on both the proposals and interviews using the
evaluation criteria and weighting described above. Based on the ranking shown below,
Michael Baker International, Inc. (Michael Baker) was selected as the most qualified
Consultant.
Michael Baker Brown &Caldwell
International, Inc.
Evaluator 1 1M 2nd
Evaluator 2 1' 2nd
Evaluator 3 1" 2nd
Evaluator 1a 2nd
Overall Ranking 1" 2nd
Michael Baker was ranked highest by the Evaluation Committee based on all three
criterion. Michael Baker proposed a highly-qualified team that includes California and
national experts on stormwater compliance for Construction and Industrial permits. This
team is composed of members who served as the state panel experts and continue as
state level committee consultants in updating requirements. Michael Baker demonstrated
the best understanding and approach to the Scope of Work. The proposed team
members have successfully performed similar projects for other agencies and the Pump
Station Stormwater Compliance Audit for the Sanitation District.
Review of Fee Proposal and Negotiations:
Proposals were accompanied by sealed fee proposals. In accordance with the
Purchasing Ordinance, the fee proposal of only the highest-ranked firm was opened after
approval by the Director of Engineering of the Evaluation Committee's recommendation.
Staff conducted negotiations with Michael Baker to clarify the requirements of the Scope
of Work, the assumptions used for the estimated level of effort, and the proposed
Page 3 d 5
approach to meet the goals and objectives for the project. A total of three meetings were
held on April 6, 2017, April 11, 2017, and April 13, 2017.
The purpose of these meetings was to establish an understanding of the Scope of Work,
discuss the assumptions used to produce the level of effort, and to find efficiencies in the
interaction between the Sanitation District and Michael Baker.
A key element of fee and hours reduction was due to Michael Baker's current work with
the Sanitation District on the Pump Station Stormwater Compliance Audit Project and
2017 Facilities Master Plan. When a clear understanding of the scope of this project was
established, it was evident there is some overlap with these projects and the Stormwater
Master Plan. The Sanitation District will be able to provide Michael Baker with some of
the background information that was assumed would be gathered during this project,
including pump station site visits field notes and condition assessment reports.
Original Fee Negotiated
Proposal Fee
Total Hours 5,069 4,526
Total Fee $805,748 $715,300
The Consultant's billing rate has been substantiated. The contract profit is 9.72%, which
is based on an established formula based on the Sanitation District's standard design
agreements. The Consultant's fringe and overhead costs were verified by obtaining a
copy of a recent audit report prepared by Burkett, Burkett & Burkett, Certified Public
Accountants, P.A. Based on the above, staff has determined that the final negotiated fee
is fair and reasonable for the level of effort required for this project and recommends
award of the Professional Services Agreement to Michael Baker.
CEQA
The proposed Stormwater Master Plan is a compliance planning tool for possible future
actions, which does not commit the Sanitation District to implement any specific project.
The proposed Stormwater Master Plan will analyze and make recommendations
regarding potential stormwater improvements that may be needed to ensure that the
Sanitation District continues to meet regulatory requirements and certification needs. The
Stormwater Master Plan will therefore take environmental factors into account. The
Sanitation District, as lead agency, has therefore determined that the preparation of the
proposed Stormwater Master Plan is exempt from CEQA pursuant to CEQA Guidelines
Section 15262 (Feasibility and Planning Studies).
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. Budget for Project No. PS16-01, Stormwater Master Plan, is included in the
Master Planning Studies for Fiscal Years 2016-17 and 2017-18 (Line item: Section 8,
Page 78).
Page 4 d 5
Date of Approval Contract Amount Continency
07/26/2017 $715,300 $71,530
ATTACHMENT
The following attachments) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package:
Professional Services Agreement
VP:sa:gc
Page 5 of 5
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into to be effective the 26' day of July
2017, by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter
referred to as "SANITATION DISTRICT', and Michael Baker International, Inc., for
purposes of this AGREEMENT hereinafter referred to as "CONSULTANT'. The
SANITATION DISTRICT and CONSULTANT are referred to herein collectively as the
"Parties" or individually as a "Party."
WITNESSETH:
WHEREAS, the SANITATION DISTRICT desires to engage a consultant for
Stormwater Master Plan, Project No. PS16-01, to provide professional services and
provide services for This project will develop an up to date Stormwater Master Plan for
Plant No. 1, Plant No. 2, and Collection Pump Stations, and evaluate hydraulic capacity
needs including assessment of the stormwater regulatory background and analysis of
stormwater flows; and,
WHEREAS, CONSULTANT is qualified to provide the necessary services in
connection with these requirements and has agreed to provide the necessary
professional services; and,
WHEREAS, the SANITATION DISTRICT has adopted procedures for the
selection of professional services and has proceeded in accordance with said
procedures to select CONSULTANT to perform this work; and,
WHEREAS, at its regular meeting on July 26, 2017, the Board of Directors, by
Minute Order, accepted the recommendation of the Operations Committee to approve
this AGREEMENT between the SANITATION DISTRICT and CONSULTANT.
NOW, THEREFORE, in consideration of the promises and mutual benefits, which
will result to the parties in carrying out the terms of this AGREEMENT, it is mutually
agreed as follows:
1. SCOPE OF WORK
CONSULTANT agrees to furnish necessary professional services to accomplish
those project elements outlined in the Scope of Work attached hereto as
"Attachment A", and by this reference made a part of this AGREEMENT.
A. The CONSULTANT shall be responsible for the professional quality,
technical accuracy, and completeness and coordination of the work and
services furnished by the CONSULTANT under this AGREEMENT,
including the work performed by its Subconsultants. Where approval by
the SANITATION DISTRICT is indicated, it is understood to be conceptual
approval only and does not relieve the CONSULTANT of responsibility for
complying with all applicable laws, regulations, codes, industry standards
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and liability for damages caused by errors, omissions, noncompliance with
industry standards, and/or negligence on the part of the CONSULTANT or
its Subconsultants.
B. CONSULTANT is responsible for the quality of work prepared under this
AGREEMENT and shall ensure that all work is performed to the highest
industry standards for clarity, uniformity, and completeness.
CONSULTANT shall timely respond to all comments, suggestions, and
recommendations from the SANITATION DISTRICT. All comments from
the SANITATION DISTRICT, or its agent, shall be incorporated into the
work prior to the next review deadline or addressed, in writing, as to why
the comment(s) has/have not been incorporated. CONSULTANT shall
ensure that each submittal is 100% accurate for the level of work
submitted (i.e. correct references, terms, capitalization or equal status,
spelling, punctuation, etc.)
C. In the event that CONSULTANT's services and/or work product(s) is not to
the satisfaction of the SANITATION DISTRICT and/or does not conform to
the requirements of this AGREEMENT or the applicable industry
standards, the CONSULTANT shall, without additional compensation,
promptly correct or revise any errors or deficiencies in its work product(s)
within the timeframe specified by the Project Manager. The SANITATION
DISTRICT may charge to CONSULTANT all costs, expenses and
damages associated with any such corrections or revisions.
D. Any CADD drawings, figures, and other work produced by CONSULTANT
and Subconsultants using the SANITATION DISTRICT CAD Manual.
Conversion of CADD work from any other non-standard CADD format to
the SANITATION DISTRICT format shall not be acceptable in lieu of this
requirement.
Electronic files shall conform to the SANITATION DISTRICT
specifications. Any changes to these specifications by the CONSULTANT
are subject to review and require advance written approval of the
SANITATION DISTRICT.
Electronic files shall be subject to an acceptance period of 30 calendar
days during which the SANITATION DISTRICT shall perform appropriate
reviews and including CAD Manual compliance. CONSULTANT shall
correct any discrepancies or errors detected and reported within the
acceptance period at no additional cost to the SANTITATION DISTRICT.
E. All professional services performed by the CONSULTANT, including, but
not limited to, all drafts, data, correspondence, proposals, and reports
compiled or composed by the CONSULTANT, pursuant to this
AGREEMENT, are for the sole use of the SANITATION DISTRICT, its
agents and employees. Neither the documents nor their contents shall be
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released to any third party without the prior written consent of the
SANITATION DISTRICT. This provision does not apply to information that
(a)was publicly known, or otherwise known to the CONSULTANT, at the
time that it was disclosed to the CONSULTANT by the SANITATION
DISTRICT, or(b) subsequently becomes publicly known to the
CONSULTANT other than through disclosure by the SANITATION
DISTRICT.
2. COMPENSATION
Total compensation shall be paid to CONSULTANT for services in accordance
with the following provisions:
A. Total Compensation
Total compensation shall be in an amount not to exceed Seven Hundred
Fifteen Thousand Three Hundred Dollars ($715,300). Total compensation
to CONSULTANT including burdened labor (salaries plus benefits),
overhead, profit, direct costs, and Subconsultant(s) fees and costs shall
not exceed the sum set forth in Attachment"E" - Fee Proposal.
B. Labor
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the
burdened salaries (salaries plus benefits) actually paid by CONSULTANT
charged on an hourly-rate basis to this project and paid to the personnel of
CONSULTANT. Upon request of the SANITATION DISTRICT,
CONSULTANT shall provide the SANITATION DISTRICT with certified
payroll records of all employees' work that is charged to this project.
C. Overhead
As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall compensate CONSULTANT and
Subconsultants for overhead at the rate equal to the percentage of
burdened labor as specified in Attachment "E" - Fee Proposal.
D. Profit
Profit for CONSULTANT and Subconsultants shall be a percentage of
consulting services fees (Burdened Labor and Overhead). When the
consulting or subconsulting services amount is $250,000 or less, the
maximum Profit shall be 10%. Between $250,000 and $2,500,000, the
maximum Profit shall be limited by a straight declining percentage
between 10% and 5%. For consulting or subconsulting services fees with
a value greater than $2,500,000, the maximum Profit shall be 5%.
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Addenda shall be governed by the same maximum Profit percentage after
adding consulting services fees.
As a portion of the total compensation to be paid to CONSULTANT and
Subconsultants, the SANITATION DISTRICT shall pay profit for all
services rendered by CONSULTANT and Subconsultants for this project
according to Attachment "E" - Fee Proposal.
E. Subconsultants
For any Subconsultant whose fees for services are greater than or equal
to $100,000 (excluding out-of-pocket costs), CONSULTANT shall pay to
Subconsultant total compensation in accordance with the Subconsultant
amount specified in Attachment "E" - Fee Proposal.
For any Subconsultant whose fees for services are less than $100,000,
CONSULTANT may pay to Subconsultant total compensation on an
hourly-rate basis per Attachment"J"— Minor Subconsultant Hourly Rate
Schedule and as specified in the Scope of Work. The SANITATION
DISTRICT shall pay to CONSULTANT the actual costs of Subconsultant
fees and charges in an amount not to exceed the sum set forth in
Attachment "E" - Fee Proposal.
F. Direct Costs
The SANITATION DISTRICT shall pay to CONSULTANT and
Subconsultants the actual costs of permits and associated fees, travel and
licenses for an amount not to exceed the sum set forth in Attachment "E" -
Fee Proposal. The SANITATION DISTRICT shall also pay to
CONSULTANT actual costs for equipment rentals, leases or purchases
with prior approval of the SANITATION DISTRICT. Upon request,
CONSULTANT shall provide to the SANITATION DISTRICT receipts and
other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D" - Allowable Direct
Costs. All incidental expenses shall be included in overhead pursuant to
Section 2 - COMPENSATION above.
G. Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to
modifications in scope of work resulting from field investigations and field
work required by Contract. These items may include special equipment,
test equipment and tooling and other materials and services not previously
identified. Refer to attachment "D"Allowable Direct Costs for payment
information.
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H. Reimbursable Direct Costs
The SANITATION DISTRICT will reimburse the CONSULTANT for
reasonable travel and business expenses as described in this section and
further described in Attachment "D" - Allowable Direct Costs to this
Agreement. The reimbursement of the above mentioned expenses will be
based on an "accountable plan' as considered by Internal Revenue Service
(IRS). The plan includes a combination of reimbursements based upon
receipts and a "per diem" component approved by IRS. The most recent
schedule of the per diem rates utilized by the SANITATION DISTRICT can
be found on the U.S. General Service Administration website at
htti)://www.gsa.gov/portal/category/l 04711#.
The CONSULTANT shall be responsible for the most economical and
practical means or management of reimbursable costs inclusive but not
limited to travel, lodging and meals arrangements. The SANITATION
DISTRICT shall apply the most economic and practical method of
reimbursement which may include reimbursements based upon receipts
and/or"per diem' as deemed the most practical.
CONSULTANT shall be responsible for returning to the SANITATION
DISTRICT any excess reimbursements after the reimbursement has been
paid by the SANITATION DISTRICT.
Travel and travel arrangements—Any travel involving airfare, overnight
stays or multiple day attendance must be approved by the SANITATION
DISTRICT in advance.
Local Travel is considered travel by the CONSULTANT within the
SANITATION DISTRICT geographical area which includes Orange, Los
Angeles, Ventura, San Bernardino, Riverside, San Diego, Imperial and
Kern Counties. Automobile mileage is reimbursable if CONSULTANT is
required to utilize personal vehicle for local travel.
Lodging —Overnight stays will not be approved by the SANITATION
DISTRICT for local travel. However, under certain circumstances overnight
stay may be allowed at the discretion of the SANITATION DISTRICT based
on reasonableness of meeting schedules and the amount of time required
for travel by the CONSULTANT. Such determination will be made on a
case-by-case basis and at the discretion of the SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by IRS shall be utilized for
travel meals reimbursements. Per diem rates shall be applied to meals that
are appropriate for travel times. Receipts are not required for the approved
meals.
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Additional details related to the reimbursement of the allowable direct costs
are provided in the Attachment "D" - Allowable Direct Costs of this
Agreement.
I. Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the
services described in CONSULTANT's Proposal will exceed seventy-fiver
percent (75%) of the not-to- exceed amount of the Agreement, including
approved additional compensation, CONSULTANT shall notify the
SANITATION DISTRICT immediately, and in writing. This written notice
shall indicate the additional amount necessary to complete the services.
Any cost incurred in excess of the approved not-to-exceed amount,
without the express written consent of the SANITATION DISTRICT's
authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any
notification requirements contained in the CONSULTANT's invoice and
monthly progress report. Failure to notify the SANITATION DISTRICT that
the services cannot be completed within the authorized not-to-exceed
amount is a material breach of this Agreement.
3. REALLOCATION OF TOTAL COMPENSATION
The SANITATION DISTRICT, by its Director of Engineering, shall have the right
to approve a reallocation of the incremental amounts constituting the Total
Compensation, provided that the Total Compensation is not increased.
4. PAYMENT
A. Monthly Invoice: CONSULTANT shall include in its monthly invoice, a
detailed breakdown of costs associated with the performance of any
corrections or revisions of the work for that invoicing period, in a format
acceptable to the SANITATION DISTRICT. CONSULTANT shall warrant
and certify the accuracy of these costs and provide all support
documentation required by the SANITATION DISTRICT. CONSULTANT
understands that submitted costs are subject to Section 12 Audit
Provisions.
B. CONSULTANT will submit monthly statements covering services and/or
work performed for payment for those items included in Section 2 hereof
no later than the second Wednesday of the following month and in the
format required by the SANITATION DISTRICT. The format must include,
as a minimum: 1) current billing period invoicing, 2) current billing period
"total percent invoiced to date", 3) future activities, 4) previous billing
period "total invoiced to date", 5) potential items that are not included in
the Scope of Work, 6) concerns and possible delays, 7) percentage of
PSA PROJECT NO. PS16-01
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completion to date, and 8) budget status and amount remaining. Such
requests shall be accompanied by such supporting data as may be
required by the SANITATION DISTRICT.
Upon approval of such payment request by the SANITATION DISTRICT,
payment shall be made to CONSULTANT as soon as practicable of one
hundred percent (100%) of the invoiced amount.
If the SANITATION DISTRICT determines that the work under this
AGREEMENT or any specified project element hereunder, is incomplete
and that the amount of payment is in excess of'.
i. The amount considered by the SANITATION DISTRICT's Director
of Engineering to be adequate for the protection of the
SANITATION DISTRICT; or
ii. The percentage of the work accomplished for each project element,
The SANITATION DISTRICT may, at the discretion of the Director of
Engineering, retain an amount equal to that which insures that the total
amount paid to that date does not exceed the percentage of the
completed work for the Project in its entirety.
C. CONSULTANT may submit periodic payment requests for each 30-day
period of this Agreement for the profit as set forth in Section 2 -
COMPENSATION above. Said profit payment request shall be
proportionate to the work actually accomplished to date on a per-project-
element basis. In the event the SANITATION DISTRICT's Director of
Engineering determines that no satisfactory progress has been made
since the prior payment, or in the event of a delay in the work progress for
any reason, the SANITATION DISTRICT shall have the right to withhold
any scheduled proportionate profit payment.
D. Upon satisfactory completion by CONSULTANT of the work called for
under the terms of this AGREEMENT, and upon acceptance of such work
by the SANITATION DISTRICT, CONSULTANT will be paid the unpaid
balance of any money due for such work based on the monthly
statements, including any retained percentages relating to this portion of
the work.
E. Upon satisfactory completion of the work performed hereunder and prior
to final payment under this AGREEMENT for such work, or prior
settlement upon termination of this AGREEMENT, and as a condition
precedent thereto, CONSULTANT shall execute and deliver to the
SANITATION DISTRICT a release of all claims against the SANITATION
DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from
the operation of the release in stated amounts to be set forth therein.
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F. Pursuant to the California False Claims Act (Government Code sections
12650-12655), any CONSULTANT that knowingly submits a false claim to
the SANITATION DISTRICT for compensation under the terms of this
AGREEMENT may be held liable for treble damages and up to a $10,000
civil penalty for each false claim submitted. This section shall also be
binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a
false claim when the CONSULTANT or Subconsultant: (a) knowingly
presents or causes to be presented to an officer or employee of the
SANITATION DISTRICT a false claim or request for payment or approval;
(b) knowingly makes, uses, or causes to be made or used a false record
or statement to get a false claim paid or approved by the SANITATION
DISTRICT; (c) conspires to defraud the SANITATION DISTRICT by
getting a false claim allowed or paid by the SANITATION DISTRICT; (d)
knowingly makes, uses, or causes to be made or used a false record or
statement to conceal, avoid, or decrease an obligation to the
SANITATION DISTRICT; or(e) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to
disclose the false claim to the SANITATION DISTRICT within a
reasonable time after discovery of the false claim.
5. PREVAILING WAGES
A. To the extent CONSULTANT intends to utilize employees who will perform
work during the contract, as more specifically defined under Labor Code
Section 1720, CONSULTANT shall be subject to prevailing wage
requirements with respect to such employees.
6. CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (DIR)
REGISTRATION AND RECORD OF WAGES
A. To the extent CONSULTANT's employees and/or Subconsultants who will
perform Work during the design and preconstruction phases of a
construction contract for which Prevailing Wage Determinations have
been issued by the DIR and as more specifically defined under Labor
Code Section 1720 et seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5.
Pursuant to Labor Code Section 1771.4, the Work is subject to
compliance monitoring and enforcement by the DIR.
B. The CONSULTANT and Subconsultants shall maintain accurate payroll
records and shall comply with all the provisions of Labor Code Section
1776, and shall submit payroll records to the Labor Commissioner
pursuant to Labor Code Section 1771.4(a)(3). Penalties for non-
compliance with the requirements of Section 1776 may be deducted from
progress payments per Section 1776.
PSA PROJECT NO. PS16-01
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C. Pursuant to Labor Code Section 1776, the CONSULTANT and
Subconsultants shall furnish a copy of all certified payroll records to
SANITATION DISTRICT and/or general public upon request, provided the
public request is made through SANITATION DISTRICT, the Division of
Apprenticeship Standards or the Division of Labor Enforcement of the
Department of Industrial Relations.
D. The CONSULTANT and Subconsultants shall comply with the job site
notices posting requirements established by the Labor Commissioner per
Title 8, California Code of Regulation Section 16461(3).
7. DOCUMENT OWNERSHIP — CONSULTANT PERFORMANCE
A. Ownership of Documents for the Professional Services performed.
All documents in all forms (electronic, paper, etc.), including, but not
limited to, studies, sketches, drawings, computer printouts, disk files, and
electronic copies prepared in connection with or related to the Scope of
Work or Professional Services, shall be the property of the SANITATION
DISTRICT. The SANITATION DISTRICT's ownership of these documents
includes use of, reproduction or reuse of and all incidental rights, whether
or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or
any partial payment for work performed and includes ownership of any
and all work product completed prior to that payment. This Section shall
apply whether the CONSULTANT's Professional Services are terminated:
a) by the completion of the AGREEMENT, or b) in accordance with other
provisions of this AGREEMENT. Notwithstanding any other provision of
this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer
printouts and disk files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by
subsequent changes to or uses of the study or deliverable where the
subsequent changes or uses are not authorized or approved by
CONSULTANT, provided that the service rendered by CONSULTANT was
not a proximate cause of the damage.
8. INSURANCE
A. General
i. Insurance shall be issued and underwritten by insurance
companies acceptable to the SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and
Financial Rating of at least Class VIII, or better, in accordance with
the most current A.M. Best's Guide Rating. However, the
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SANITATION DISTRICT will accept State Compensation Insurance
Fund, for the required policy of Worker's Compensation Insurance
subject to the SANITATION DISTRICT's option to require a change
in insurer in the event the State Fund financial rating is decreased
below "B". Further, the SANITATION DISTRICT will require
CONSULTANT to substitute any insurer whose rating drops below
the levels herein specified. Said substitution shall occur within
twenty (20) days of written notice to CONSULTANT, by the
SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work
under this Agreement.
B. General Liability
The CONSULTANT shall maintain during the life of this Agreement,
including the period of warranty, Commercial General Liability Insurance
written on an occurrence basis providing the following minimum limits of
liability coverage: One Million Dollars ($1,000,000) per occurrence with
One Million Dollars ($1,000,000) aggregate. Said insurance shall include
coverage for the following hazards: Premises-Operations, blanket
contractual liability (for this Agreement), products liability/completed
operations (including any product manufactured or assembled), broad
form property damage, blanket contractual liability, independent
contractor's liability, personal and advertising injury, mobile equipment,
owners and contractor's protective liability, and cross liability and
severability of interest clauses. A statement on an insurance certificate will
not be accepted in lieu of the actual additional insured endorsement(s). If
requested by SANITATION DISTRICT and applicable, XCU coverage
(Explosion, Collapse and Underground) and Riggers/On Hook Liability
must be included in the General Liability policy and coverage must be
reflected on the submitted Certificate of Insurance.
C. Umbrella Excess Liability
The minimum limits of general liability and Automotive Liability Insurance
required, as set forth herein, shall be provided for through either a single
policy of primary insurance or a combination of policies of primary and
umbrella excess coverage. Umbrella excess liability coverage shall be
issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and
automotive liability.
D. AutomotiveNehicle liability Insurance
The CONSULTANT shall maintain a policy of Automotive Liability
Insurance on a comprehensive form covering all owned, non-owned, and
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hired automobiles, trucks, and other vehicles providing the following
minimum limits of liability coverage: Combined single limit of One Million
Dollars ($1,000,000) or alternatively, One Million Dollars ($1,000,000) per
person for bodily injury and One Million Dollars ($1,000,000) per accident
for property damage. A statement on an insurance certificate will not be
accepted in lieu of the actual additional insured endorsement.
E. Workers Compensation Insurance
The CONSULTANT shall provide such Workers' Compensation Insurance
as required by the Labor Code of the State of California in the amount of
the statutory limit, including Employer's Liability Insurance with a minimum
limit of One Million Dollars ($1,000,000) per occurrence. Such Worker's
Compensation Insurance shall be endorsed to provide for a waiver of
subrogation in favor of the SANITATION DISTRICT. A statement on an
insurance certificate will not be accepted in lieu of the actual
endorsements unless the insurance carrier is State of California Insurance
Fund and the identifier"SCIF' and endorsement numbers 2570 and 2065
are referenced on the certificate of insurance. If an exposure to Jones Act
liability may exist, the insurance required herein shall include coverage for
Jones Act claims.
F. Errors and Omissions/Professional Liability
CONSULTANT shall maintain in full force and effect, throughout the term
of this Agreement, standard industry form professional negligence errors
and omissions insurance coverage in an amount of not less than Two
Million Dollars ($2,000,000) with limits in accordance with the provisions of
this Paragraph. If the policy of insurance is written on a "claims made'
basis, said policy shall be continued in full force and effect at all times
during the term of this Agreement, and for a period of five (5) years from
the date of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT
shall obtain continuing insurance coverage for the prior acts or omissions
of CONSULTANT during the course of performing services under the term
of this Agreement. Said coverage shall be evidenced by either a new
policy evidencing no gap in coverage or by separate extended "tail'
coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence"
basis, said policy shall be continued in full force and effect during the term
of this Agreement or until completion of the services provided for in this
Agreement, whichever is later. In the event of termination of said policy
during this period, new coverage shall be obtained for the required period
to insure for the prior acts of CONSULTANT during the course of
performing services under the term of this Agreement.
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CONSULTANT shall provide to the SANITATION DISTRICT a certificate
of insurance in a form acceptable to the SANITATION DISTRICT
indicating the deductible or self-retention amounts and the expiration date
of said policy, and shall provide renewal certificates not less than ten (10)
days prior to the expiration of each policy term.
G. Proof of Coverage
The CONSULTANT shall furnish the SANITATION DISTRICT with original
certificates and amendatory endorsements effecting coverage. Said
policies and endorsements shall conform to the requirements herein
stated. All certificates and endorsements are to be received and approved
by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified
copies of all required insurance policies, including endorsements, effecting
the coverage required, at any time. The following are approved forms that
must be submitted as proof of coverage:
• Certificate of ACORD Form 25 (5/2010) or equivalent.
Insurance
• Additional Insurance (ISO Form) CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements
must be submitted for approval by the
SANITATION DISTRICT, and the
SANITATION DISTRICT may reject
alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent.
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2065 or equivalent.
H. Cancellation Notice
Each insurance policy required herein shall be endorsed to state that
coverage shall not be cancelled by either party, except after thirty (30)
days' prior written notice. The Cancellation Section of ACORD Form 25
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(5/2010) shall state the required thirty (30) days' written notification. The
policy shall not terminate, nor shall it be cancelled, nor the coverage
reduced until thirty (30) days after written notice is given to the
SANITATION DISTRICT except for nonpayment of premium, which shall
require not less than ten (10) days written notice to the SANITATION
DISTRICT. Should there be changes in coverage or an increase in
deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter
which includes a description of the changes in coverage and/or any
increase in deductible or SIR amounts. The certified letter must be sent to
the attention of Risk Management, Div. 260, and shall be received by the
SANITATION DISTRICT not less than thirty (30) days prior to the effective
date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of
insurance coverage provided to the SANITATION DISTRICT.
I. Primary Insurance
All liability policies shall contain a Primary and Non Contributory Clause.
Any other insurance maintained by the SANITATION DISTRICT shall be
excess and not contributing with the insurance provided by
CONSULTANT.
J. Separation of Insured
All liability policies shall contain a "Separation of Insureds" clause.
K. Non-Limiting (if applicable)
Nothing in this document shall be construed as limiting in any way, nor
shall it limit the indemnification provision contained in this Agreement, or
the extent to which CONSULTANT may be held responsible for payment
of damages to persons or property.
L. Deductibles and Self-Insured Retentions
Any deductible and/or self-insured retention must be declared to the
SANITATION DISTRICT on the Certificate of Insurance. All deductibles
and/or self-insured retentions require approval by the SANITATION
DISTRICT. At the option of the SANITATION DISTRICT, either: the
insurer shall reduce or eliminate such deductible or self-insured retention
as respects the SANITATION DISTRICT; or the CONSULTANT shall
provide a financial guarantee satisfactory to the SANITATION DISTRICT
guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
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M. Defense Costs
Liability policies shall have a provision that defense costs for all insureds
and additional insureds are paid in addition to and do not deplete any
policy limits.
N. Subconsultants
The CONSULTANT shall be responsible to establish insurance
requirements for any Subconsultant hired by the CONSULTANT. The
insurance shall be in amounts and types reasonably sufficient to deal with
the risk of loss involving the Subconsultant's operations and work.
O. Limits Are Minimums
If the CONSULTANT maintains higher limits than any minimums shown
above, then SANITATION DISTRICT requires and shall be entitled to
coverage for the higher limits maintained by CONSULTANT.
9. SCOPE CHANGES
In the event of a change in the Scope of Work or a change in the proposed
Project, as requested by the SANITATION DISTRICT, the Parties hereto shall
execute an Amendment to this AGREEMENT setting forth with particularity all
terms of the new AGREEMENT, including, but not limited to any additional
CONSULTANT's fees.
10. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of
this AGREEMENT, the names and full description of all Subconsultants and
CONSULTANT's project team members anticipated to be used on this Project
under this AGREEMENT by CONSULTANT. CONSULTANT shall include a
description of the work and services to be done by each Subconsultant and each
of CONSULTANT's Project team member. CONSULTANT shall include the
respective compensation amounts for CONSULTANT and each Subconsultant,
broken down as indicated in Section 2- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's
project team members without prior written approval by the SANITATION
DISTRICT.
11. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered
engineers and a staff of specialists and draftsmen in each department. The firm
itself is not a registered engineer but represents and agrees that wherever, in the
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performance of this AGREEMENT, the services of a registered engineer is
required, such services hereunder will be performed under the direct supervision
of registered engineers who are registered in California.
12. AUDIT PROVISIONS.
A. SANITATION DISTRICT retains the reasonable right to access, review,
examine, and audit, any and all books, records, documents and any other
evidence of procedures and practices that the SANITATION DISTRICT
determines are necessary to discover and verify that the CONSULTANT is
in compliance with all requirements under this AGREEMENT. The
CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that
these rights are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's
books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to
discover and verify all direct and indirect costs, of whatever nature, which
are claimed to have been incurred, or anticipated to be incurred or to
ensure CONSULTANT's compliance with all requirements under this
AGREEMENT during the term of this AGREEMENT and for a period of
three (3) years after its termination.
C. CONSULTANT shall maintain complete and accurate records in
accordance with generally accepted industry standard practices and the
SANITATION DISTRICT's policy. The CONSULTANT shall make
available to the SANITATION DISTRICT for review and audit, all project
related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT.
Upon SANITATION DISTRICT's request, the CONSULTANT shall submit
exact duplicates of originals of all requested records to the SANITATION
DISTRICT. If an audit is performed, CONSULTANT shall ensure that a
qualified employee of the CONSULTANT will be available to assist
SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
13. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent
contractor and nothing herein shall be deemed to transform CONSULTANT, its
staff, independent contractors, or Subconsultants into employees of the
SANITATION DISTRICT. CONSULTANT'S staff performing services under the
AGREEMENT shall at all times be employees and/or independent contractors of
CONSULTANT. CONSULTANT shall monitor and control its staff and pay
wages, salaries, and other amounts due directly to its staff in connection with the
AGREEMENT. CONSULTANT shall be responsible for hiring, review, and
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termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
14. NOTICES
All notices hereunder and communications regarding the interpretation of the terms
of this AGREEMENT, or changes thereto, shall be effected by delivery of said
notices in person or by depositing said notices in the U.S. mail, registered or
certified mail, return receipt requested, postage prepaid and addressed as follows:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Victoria Pilko, Project Manager
CONSULTANT:
Michael Baker International, Inc.
14725 Alton Parkway
Irvine, CA 92618-2027
Representative: John McCarthy or Dave Mercier
All communication regarding the Scope of Work, will be addressed to the Project
Manager. Direction from other SANITATION DISTRICT staff must be approved
in writing by the SANITATION DISTRICT's Project Manager prior to action from
the CONSULTANT.
15. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time,
without cause, upon giving thirty (30) days written notice to CONSULTANT. In
the event of such termination, CONSULTANT shall be entitled to compensation
for work performed on a prorated basis through and including the effective date
of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)
days written notice only if CONSULTANT is not compensated for billed amounts
in accordance with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the
address listed in Paragraph 14 - NOTICES.
16. DOCUMENTS AND STUDY MATERIALS
The documents and study materials for this Project shall become the property of
the SANITATION DISTRICT upon the termination or completion of the work.
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CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all
memoranda, correspondence, electronic materials, computation and study
materials in its files pertaining to the work described in this AGREEMENT, which
is requested in writing by the SANITATION DISTRICT.
17. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays
employees not less than the minimum wage as defined by law, and that it does
not discriminate in its employment with regard to race, color, religion, sex or
national origin; that it is in compliance with all federal, state and local directives
and executive orders regarding non-discrimination in employment; and that it
agrees to demonstrate positively and aggressively the principle of equal
opportunity in employment.
18. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each
individual executing this document by and on behalf of each Party is a person
duly authorized to execute this AGREEMENT for that Party.
19. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or
interpretation of this AGREEMENT, the dispute shall be resolved by binding
arbitration under the auspices of the Judicial Arbitration and Mediation Service
("JAMS"), or similar organization or entity conducting alternate dispute resolution
services.
20. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative
Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees,
costs and necessary disbursements in addition to any other relief to which he
may be entitled.
21. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted
industry and professional standards. If, within the 12-month period following
completion of its services, the SANITATION DISTRICT informs CONSULTANT
that any part of the services fails to meet those standards, CONSULTANT shall,
within the time prescribed by the SANITATION DISTRICT, take all such actions
as are necessary to correct or complete the noted deficiency(ies).
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22. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the
SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect
and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT's
officers, directors, employees, CONSULTANT's, and agents (collectively the
"Indemnified Parties"), from and against any and all claims, damages, liabilities,
causes of action, suits, arbitration awards, losses,judgments, fines, penalties, costs
and expenses (including, without limitation, attorneys' fees, disbursements and court
costs, and all other professional, expert or CONSULTANT's fees and costs and the
SANITATION DISTRICT's general and administrative expenses; individually, a
"Claim"; collectively, "Claims") which may arise from or are in any manner related,
directly or indirectly, to any work performed, or any operations, activities, or services
provided by CONSULTANT in carrying out its obligations under this Agreement to the
extent of the negligent, recklessness and/or willful misconduct of CONSULTANT, its
principals, officers, agents, employees, CONSULTANT's suppliers, CONSULTANT,
Subconsultants, subcontractors, and/or anyone employed directly or indirectly by any
of them, regardless of any contributing negligence or strict liability of an Indemnified
Party. Notwithstanding the foregoing, nothing herein shall be construed to require
CONSULTANT to indemnify the Indemnified Parties from any Claim arising solely
from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C)the independent action of a third party who is neither one of the Indemnified
Parties nor the CONSULTANT, nor its principal, officer, agent, employee, nor
CONSULTANT's supplier, CONSULTANT, Subconsultant, subcontractor, nor
anyone employed directly or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to
the fullest extent permitted by law, indemnify the Indemnified Parties, from
Claims arising from more than one cause if any such cause taken alone would
otherwise result in the obligation to indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any
liability CONSULTANT may have to the SANITATION DISTRICT for a breach by
CONSULTANT of any of the provisions of this Agreement. Under no
circumstances shall the insurance requirements and limits set forth in this
Agreement be construed to limit CONSULTANT's indemnification obligation or
other liability hereunder. The terms of this Agreement are contractual and the
result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code
Section 1654) that ambiguities are to be construed against the drafting party,
shall not be employed in the interpretation of this Agreement.
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23. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code section 2782.8. Such
defense obligation shall arise immediately upon presentation of a Claim by any
person if, without regard to the merit of the Claim, such Claim could potentially result
in an obligation to indemnify one or more Indemnified Parties, and upon written
notice of such Claim being provided to CONSULTANT. Payment to CONSULTANT
by any Indemnified Party or the payment or advance of defense costs by any
Indemnified Party shall not be a condition precedent to enforcing such Indemnified
Party's rights to indemnification hereunder. In the event a final judgment, arbitration,
award, order, settlement, or other final resolution expressly determines that the claim
did not arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the CONSULTANT, to any extent, then the DISTRICT will reimburse
CONSULTANT for the reasonable costs of defending the Indemnified Parties
against such claims.
CONSULTANT'S indemnification obligation hereunder shall survive the
expiration or earlier termination of this AGREEMENT until such time as action
against the Indemnified Parties for such matter indemnified hereunder is fully and
finally barred by the applicable statute of limitations.
24. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT
policies and procedures including the OCSD Safety Standards, as applicable, all
of which may be amended from time to time.
25. CLOSEOUT
When the SANITATION DISTRICT determines that all Work authorized under the
AGREEMENT is fully complete and that the SANITATION DISTRICT requires no
further work from CONSULTANT, or the AGREEMENT is otherwise terminated or
expires in accordance with the terms of the AGREEMENT, the SANITATION
DISTRICT shall give the Consultant written notice that the AGREEMENT will be
closed out. CONSULTANT shall submit all outstanding billings, work submittals,
deliverables, reports or similarly related documents as required under the
AGREEMENT within thirty (30) days of receipt of notice of AGREEMENT closeout.
Upon receipt of CONSULTANT'S submittals, the SANITATION DISTRICT shall
commence a closeout audit of the AGREEMENT and will either:
I. Give the CONSULTANT a final AGREEMENT Acceptance: or
ii. Advise the CONSULTANT in writing of any outstanding item or items which
must be furnished, completed, or corrected at the CONSULTANT'S cost.
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CONSULTANT shall be required to provide adequate resources to fully support
any administrative closeout efforts identified in the AGREEMENT Such support
must be provided within the timeframe requested by the SANITATION
DISTRICT.
Notwithstanding the final AGREEMENT acceptance, the CONSULTANT will not
be relieved of its obligations hereunder, nor will the CONSULTANT be relieved of
its obligations to complete any portions of the work, the non-completion of which
were not disclosed to the SANITATION DISTRICT (regardless of whether such
nondisclosures were fraudulent, negligent, or otherwise), and the CONSULTANT
shall remain obligated under all those provisions of the AGREEMENT which
expressly or by their nature extend beyond and survive final AGREEMENT
Acceptance.
Any failure by the SANITATION DISTRICT to reject the work or to reject the
CONSULTANT's request for final Agreement Acceptance as set forth above shall
not be deemed to be acceptance of the work by the SANITATION DISTRICT for
any purpose nor imply acceptance of, or agreement with, the CONSULTANT's
request for final Agreement Acceptance.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between the
Parties and supersedes all previous negotiations between them pertaining to the
subject matter thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT, by its officers thereunto duly authorized, and CONSULTANT
as of the day and year first above written.
ORANGE COUNTY SANITATION DISTRICT
By
Board of Directors Date
By
Clerk of the Board Date
Michael Baker International, Inc.
By
Date
By
Date
ORANGE COUNTY SANITATION DISTRICT
By
Marc Dubois Date
Contracts, Purchasing and
Materials Management Manager
Attachments: Attachment"A"—Scope of Work
Attachment"B"—Labor Hour Matrix
Attachment"C"—NOT USED
Attachment"D"—Allowable Direct Costs
Attachment"E"—Fee Proposal
Attachment"F"— NOT USED
Attachment"G"—Cost Matrix and Summary
Attachment"H"— NOT USED
Attachment"I"—NOT USED
Attachment"J"—Minor Subconsultant Hourly Rate Schedule
Attachment"K"—OCSD Safety Standards
MH:ms
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OPERATIONS COMMITTEE Meeting Date TOBd.of Dir.
07/05/17 07/26/17
AGENDA REPORT IternNamber Item Number
B
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: CEQA PLAN 2017— MASTER CONTRACT NO. CEQA PLAN2017-00
GENERAL MANAGER'S RECOMMENDATION
A. Approve annual Professional Services Agreements with HDR Engineering, Inc.;
Michael Baker International; Helix Environmental Planning, Inc.; ESA; AECOM;
and LSA; Master Contract No. CEQA PLAN2017-00,with a maximum annual fiscal
year contract limitation not to exceed $400,000 for each Professional Services
Agreement; and
B. Approve two additional one-year optional extensions.
BACKGROUND
The California Environmental Quality Act (CEQA) requires public agencies to participate
in an environmental review process for all projects that are defined as a discretionary
action with potential physical effects on the environment. The Orange County Sanitation
District (Sanitation District) currently has over 100 active projects and new projects are
frequently initiated to maintain reliable sewer conveyance and treatment at its two
wastewater treatment plants.
The Sanitation District Ordinance No. OCSD-47 (Purchasing Ordinance) allows the
Sanitation District to compile prequalified lists of fines to support engineering projects.
The Purchasing Ordinance also allows the Professional Services Agreement to be
extended for up to two additional, one-year periods following the original term of one year.
The Purchasing Ordinance delegates authority to the General Manager and Director of
Engineering to solicit proposals for services to support engineering projects through
individual task orders up to $200,000.
A Request for Qualifications (RFQ)was developed and publicly advertised, and a notice
was sent to all of the firms listed in the Sanitation District's purchasing database. The
Sanitation District received 10 Statements of Qualifications in response to the RFQ to
support CEQA related services. Staff recommends approval of Professional Services
Agreements with the six highest-ranked firms to provide CEQA services on an as-needed
basis through task order authorization for a period of one year, with two additional
one-year optional extensions.
RELEVANT STANDARDS
Meet CEQA and NEPA standards
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PROBLEM
While new major capital projects will typically include a CEQA evaluation prior to design,
a scope change later in the design process may require a reassessment, which could
delay the project schedule. In addition, smaller, more urgent repair or modification
projects arise, which also require CEQA evaluation.
PROPOSED SOLUTION
Retaining a pre-qualified list of firms to provide CEQA services will enable the Sanitation
District to more quickly address environmental reviews.
TIMING CONCERNS
These agreements will shorten the time required to procure services for CEQA-related
task orders and maintain project schedules, and react more quickly to smaller repairs.
RAMIFICATIONS OF NOT TAKING ACTION
Without this prequalified pool of consultants for CEQA work, the Sanitation District would
need to request proposals for each task order, which would take additional time and
resources.
ADDITIONAL INFORMATION
Consultant Selection:
The Sanitation District requested and advertised for proposals for CEQA Plan 2017,
Master Contract No. CEQA PLAN2017-00, on March 16, 2017. The following evaluation
criteria were described in the RFQ and used to determine the most qualified Consultant.
CRITERION Value
Relevant Project Experience 30 points
Staff Qualifications 30 points
Execution of Work 30 points
Public Works 10 points
Ten proposals were received on April 18, 2017 and evaluated in accordance with the
evaluation process set forth in the Purchasing Ordinance, by a preselected Evaluation
Team consisting of the following Sanitation District staff:
Daisy Covarrubias Senior Staff Analyst
Carla Dillon Engineering Supervisor
Dean Fisher Engineering Manager
Kevin Hadden Principal Staff Analyst
Kathy Millea Engineering Manager
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The Evaluation Team also included two non-voting representatives from the Contracts
Administration Division and one non-voting technical advisor from the Sanitation District
staff.
Each member of the Evaluation Team scored the Consultants based on the proposals
using the evaluation criterion above. Based on the scores shown below, HDR
Engineering, Inc.; Michael Baker International; Helix Environmental Planning, Inc.; ESA;
AECOM; and LSA were selected as the most qualified Consultants.
Proposer TOTAL POINTS RANKING
HDR Engineering, Inc. 448 1
Michael Baker International 438 2
HELIX Environmental Planning, Inc 433 3
ESA 426 4
AECOM 423 5
LSA 421 6
DUDEK 401 7
ECORP Consultin Inc. 368 8
Chambers Grou 356 9
Infrastructure Engineering Corporation (IEC) 335 10
The selected firms demonstrated the most relevant CEQA experience with public works
projects, qualified staff, and the ability to successfully execute work.
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted and will be charged to individual projects.
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (wwwocsd.corn with the
complete agenda package:
Professional Services Agreements
CD:sa:gc
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PROFESSIONAL SERVICES AGREEMENT
This AGREEMENT is made and entered into, to be effective this July 26, 2017 by and
between:
ORANGE COUNTY SANITATION DISTRICT
hereinafter referred to as "SANITATION DISTRICT"
AND
HDR ENGINEERING, INC.
hereinafter referred to as "CONSULTANT"
RECITALS
WHEREAS, pursuant to a Request for Qualifications ("Underlying RFQ")the Board of
Directors of the SANITATION DISTRICT in accordance with Ordinance No. OCSD47, by action
on July 26, 2017 approved the award of a Professional Services Agreement("AGREEMENT")
for CONTRACT NO. CEQA PLAN2017-01, to CONSULTANT to provide services for selected
projects on a Task Order basis, from to ; and
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary CEQA and related services;
and,
WHEREAS, the parties intend by this AGREEMENT to set forth the general terms and
conditions that will apply to any specific project for which CONSULTANT is given a Task Order
by the SANITATION DISTRICT.
NOW, THEREFORE, the SANITATION DISTRICT and the CONSULTANT mutually
agree as follows:
SECTION 1. SCOPE OF AGREEMENT
The SANITATION DISTRICT, at its sole discretion, may, from time to time during the term of
this AGREEMENT, issue a Request for Task Order Proposal ("RFTOP")setting forth a
detailed Scope of Work, to be performed on the identified project, and thereafter, upon
receipt of a Proposal from the CONSULTANT, may issue a directive Task Order to proceed
with the work. The Underlying RFTOP, which includes the CONSULTANT's Proposal, and
the Task Order shall upon execution by the SANITATION DISTRICT, be attached hereto and
become an operative part of this AGREEMENT. Should any conflict or inconsistency exist in
the contract documents identified in this Section, the conflict or inconsistency shall be
resolved by applying the provisions in the highest priority document, which shall be
determined in the following order of priority:
(1 at)the terms of this AGREEMENT and any amendments thereto;
(2nd)the provisions of the RFTOP;
(3rd)the provisions of any written Task Orders, which may be issued from time to time.
PROFESSIONAL SERVICES AGREEMENT CEQA PLAN2017.01
HDR ENGINEERING, INC.
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SECTION 2. TASK ORDER ISSUANCE BY SANITATION DISTRICT
The directive Task Order issued by the SANITATION DISTRICT, shall specifically, or by
reference to the RFTOP and corresponding Proposal, set forth the specific detailed terms of
this AGREEMENT that are to apply to the specific project for which the services will be
rendered. Those terms, shall include, but not be limited to, scope, time for performance and
compensation.
SECTION 3. TERM
This AGREEMENT shall commence on the effective date of this AGREEMENT, and
terminate on unless further extended by written agreement by the
SANITATION DISTRICT and CONSULTANT. Any work that is required by a Task Order and
is not finished by the date of termination shall be continued and completed by the
CONSULTANT, and the terms and conditions of this AGREEMENT shall continue in effect for
that time. The SANITATION DISTRICT has the option to renew this AGREEMENT twice,
each with a one year term, for a maximim contract duration of three (3)years total.
SECTION 4. COMPENSATION
The total compensation, payable to the CONSULTANT pursuant to this AGREEMENT, shall
not exceed four hundred thousand dollars ($400,000) per year in accordance with the term
described in Section 3 -TERM. The compensation includes, but is not limited to, fees for
professional services (based on individual burdened labor rates and Subconsultant fees),
overhead, and profit. The specific amount of compensation payable to the CONSULTANT for
services rendered on an individual project, pursuant to a directive Task Order, shall be
established for each Task Order and shall not exceed two hundred thousand dollars
($200,000) per individual Task Order unless authorized by the SANITATION DISTRICT's
Board of Directors. CONSULTANT agrees and acknowledges that the execution of this
AGREEMENT does not in any way guarantee that a Task Order will be issued to
CONSULTANT. Moreover, execution of this AGREEMENT shall not entitle CONSULTANT to
any form of payment or compensation from the SANITATION DISTRICT without the
SANITATION DISTRICT first having issued a written Task Order.
A. Task Order Pricing
The subsections below describe the cost elements to be used in developing the price of
the written Task Orders.
1) Hourly Labor Rate Schedule
The services by the CONSULTANT, pursuant to each project Task Order, shall be billed
to the SANITATION DISTRICT at the hourly rate ranges for each class of employee to
be used, set forth in an Attachment"K"— Hourly Labor Rate Schedule, to be provided
by the SANITATION DISTRICT prior to award of Agreement and incorporated herein.
Hourly Labor Rates shall consist of the:
Burdened Salary Rate consisting of the hourly salary rate, plus benefits for each
employee or labor category specified in Attachment"K" paid by CONSULTANT and
its Subconsultants to their employees.
PROFESSIONAL SERVICES AGREEMENT CEOA PLAN2017.01
HDR ENGINEERING, INC.
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Direct Salary rates for CONSULTANT and its Subconsultants may be adjusted
annually on by mutual agreement of the Parties. Escalation of the salary
rate will be in accordance with CPI of LA-Orange County Index. This rate is
determined by the U.S. Department of Labor Statistics, Consumer Price Index— Los
Angeles/Orange County Metropolitan Area.
Burden rates for CONSULTANT and its Subconsultants shall remain fixed through the
term of this AGREEMENT, inclusive of renewals identified in Section 3 -TERM.
Overhead Rate consisting of a verified or negotiated percentage specified in
Attachment"K" and applied to the Burdened Salary Rate for CONSULTANT and its
Subconsultants. The Overhead Rates of CONSULTANT and its Subconsultants shall
remain fixed through the term of this AGREEMENT inclusive of any renewals
identified in Section 3-TERM.
Profit, expressed as a percentage, shall be applied to each Burdened Salary Rate
and applied Overhead Rate. Profit shall be included in the Hourly Labor Rates
specified in Attachment W'. Profit shall remain fixed through the term of this
AGREEMENT, inclusive of any renewals identified in Section 3-TERM.
2) Direct Costs
The SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants the
actual costs of permits and associated fees, travel, licenses, and other services in
accordance with Attachment "D"—Allowable Direct Costs, as may be specified in
each Task Order proposal. The SANITATION DISTRICT shall not pay markup on
such Direct Costs, Equipment rentals, leases, purchases and other direct costs not
agreed to and specified in the Task Order proposal may only be reimbursed by the
SANITATION DISTRICT with its prior written approval.
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel
and business expenses as described in this Section and further described in
Attachment"D"—Allowable Direct Costs to this AGREEMENT. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as considered
by the Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by the
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
htto://www.gsa.goy/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical means
of management of reimbursable costs. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem".
CONSULTANT shall return to the SANITATION DISTRICT any excess
reimbursements.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in writing,
at least fifteen (15)days in advance.
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Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles, Ventura,
San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize a personal vehicle for
local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed at
the discretion of the SANITATION DISTRICT based on reasonableness of meeting
schedules and the amount of time required for travel by the CONSULTANT. Such
determination will be made on a case-by-case basis and at the discretion of the
SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by the IRS shall be utilized for travel meal
reimbursements. Per diem rates shall be applied to meals that are appropriate for
travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"—Allowable Direct Costs of this AGREEMENT.
All incidental expenses shall be included in the Overhead Rate pursuant to
Subsection A.1) Hourly Labor Rate Schedule above.
Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts
and other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D"—Allowable Direct Costs.
3) Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications
in scope of work resulting from Feld investigations and field work required by
Contract. These items may include special equipment, test equipment and tooling
and other materials and services not previously identified. Refer to Attachment"D"—
Allowable Direct Costs for payment information.
4) Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Task Order Proposal will exceed seventy-five percent
(75%) of the not-to-exceed amount of the Task Order, including any approved
additional compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional amount
necessary to complete the services. Any cost incurred in excess of the approved not-
to-exceed amount, without the express written consent of the SANITATION
DISTRICT's authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any notification
requirements contained in the CONSULTANT's invoice and monthly progress report.
Failure to notify the SANITATION DISTRICT that the services cannot be completed
within the authorized not-to-exceed amount of a Task Order is a material breach of
this AGREEMENT.
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B. Additional Work:
For extra work not a part of this AGREEMENT, written authorization from the SANITATION
DISTRICT is required prior to the CONSULTANT undertaking any extra work.
C. Method of Payment:
The CONSULTANT shall submit for approval by the SANITATION DISTRICT, monthly
invoices based on the total services which have been satisfactorily completed and
specifying a percentage of completion. The CONSULTANT's billings shall be certified for
payment by the SANITATION DISTRICT only after the SANITATION DISTRICT has
determined that the CONSULTANT has completed each applicable project task.
CONSULTANT shall submit separate invoices for each Task Order on a monthly basis.
CONSULTANT understands that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
D. Task Order Completion
Upon satisfactory completion of the work performed under each Task Order, and prior to
final payment under each Task Order for such work, or prior settlement upon termination
of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute
and deliver to the SANITATION DISTRICT a release of all claims against the
SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from the operation of
the release in stated amounts to be set forth therein.
E. False Claims
Pursuant to the California False Claims Act (Government Code Sections 12650-12655),
any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT
for compensation under the terms of this AGREEMENT may be held liable for treble
damages and up to a $10,000 civil penalty for each false claim submitted. This Section
shall also be binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim
when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be
presented to an officer or employee of the SANITATION DISTRICT a false claim or
request for payment or approval; (b) knowingly makes, uses, or causes to be made or
used a false record or statement to get a false claim paid or approved by the
SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting
a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses,
or causes to be made or used a false record or statement to conceal, avoid, or decrease
an obligation to the SANITATION DISTRICT; or (a) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of the false
claim.
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F. California Department of Industrial Relations (DIR) Registration and Record of Wages:
To the extent the CONSULTANT's employees and/or Subconsultants who will perform work
during the design and preconstruction phases of a construction contract for which
Prevailing Wage Determinations have been issued by the DIR and as more specifically
defined under Labor Code Section 1720 at seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor
Code Section 1771.4, the work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for
non-compliance with the requirements of Section1776 may be deducted from progress
payments per Section 1776.
Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish
a copy of all certified payroll records to the SANITATION DISTRICT and/or general public
upon request, provided the public request is made through the SANITATION DISTRICT,
the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of
the DIR.
The CONSULTANT and Subconsultants shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulations Section 16461(e).
G. Record of Expenses:
The CONSULTANT shall keep complete and accurate records of all costs and expenses
incidental to services covered by this AGREEMENT. These records will be made available
to the SANITATION DISTRICT upon request.
H. Reallocation of Total Compensation:
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve
a reallocation of the incremental amounts constituting the total compensation payable under
the Task Order, provided that the total compensation for the Task Order is not increased.
SECTIONS. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT
The CONSULTANT shall not contract with any other person or entity to perform the services
required without the written approval of the SANITATION DISTRICT. This AGREEMENT may
not be assigned voluntarily, or by operation of law, without the prior written approval of the
SANITATION DISTRICT. If the CONSULTANT is permitted to subcontract any part of this
AGREEMENT by the SANITATION DISTRICT, the CONSULTANT shall be responsible to the
SANITATION DISTRICT for the acts and omissions of its subcontractor, as it is for persons
directly employed. Nothing contained in this AGREEMENT shall create any contractual
relationship between any subcontractor and the SANITATION DISTRICT. All persons
engaged in the work will be considered employees of the CONSULTANT. The SANITATION
DISTRICT will deal directly with and will make all payments to the CONSULTANT.
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SECTION 6. CHANGES TO SCOPE OF WORK
In the event of a change in the Scope of Work as requested by the SANITATION DISTRICT,
the parties hereto shall execute an amendment to the Task Order, setting forth with
particularity, all new terms of the Task Order, including but not limited to, any additional
compensation.
SECTION 7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. All documents in all forms (electronic, paper, etc.), including, but not limited to, studies,
sketches, drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Professional Services, shall be the
property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of
these documents includes use of, reproduction or reuse of and all incidental rights,
whether or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or any partial
payment for work performed and includes ownership of any and all work product
completed prior to that payment. This Section shall apply whether the CONSULTANT's
Professional Services are terminated: a) by the completion of the AGREEMENT, or b) in
accordance with other provisions of this AGREEMENT. Notwithstanding any other
provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or
uses of the study or deliverable where the subsequent changes or uses are not
authorized or approved by CONSULTANT, provided that the service rendered by
CONSULTANT was not a proximate cause of the damage.
C. Copies of Work Product
Upon completion of the work required for each Task Order, the CONSULTANT shall
deliver to the SANITATION DISTRICT the number of copies specified in the specific Task
Order Scope of Work of the final report containing the CONSULTANT's findings,
conclusions, recommendations, and all supporting documentation and/or final design
drawings and specifications. Each Task Order will define the requirements for the
deliverables.
SECTION 8. INSURANCE
A. General:
i. Insurance shall be issued and underwritten by insurance companies acceptable to the
SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at
least Class VI11, or better, in accordance with the most current A.M. Best's Guide
Rating. However, the SANITATION DISTRICT will accept State Compensation
Insurance Fund, for the required policy of Worker's Compensation Insurance subject
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to the SANITATION DISTRICT's option to require a change in insurer in the event the
State Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose rating drops
below the levels herein specified. Said substitution shall occur within twenty (20)days
of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under this
AGREEMENT.
B. General Liability:
The CONSULTANT shall maintain during the life of this AGREEMENT, including the period
of warranty, Commercial General Liability Insurance written on an occurrence basis
providing the following minimum limits of liability coverage: One Million Dollars ($1,000,000)
per occurrence with One Million Dollars ($1,000,000) aggregate. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual
liability (for this AGREEMENT), products liability/completed operations (including any
product manufactured or assembled), broad form property damage, blanket contractual
liability, independent contractors liability, personal and advertising injury, mobile equipment,
owners and contractors protective liability, and cross liability and severability of interest
clauses. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable,
XCU coverage (Explosion, Collapse and Underground)and Riggers/On Hook Liability must
be included in the General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability:
The minimum limits of general liability and Automotive Liability Insurance required, as set
forth herein, shall be provided for through either a single policy of primary insurance or a
combination of policies of primary and umbrella excess coverage. Umbrella excess liability
coverage shall be issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and automotive liability.
D. Automotive Vehicle Liability Insurance:
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and
other vehicles providing the following minimum limits of liability coverage: Combined single
limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000)
per person for bodily injury and One Million Dollars ($1,000,000) per accident for property
damage. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement.
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E. Drone Liability Insurance:
If a drone will be used, drone liability insurance must be maintained by CONSULTANT in
the amount of One Million Dollars ($1,000,000) in a form acceptable by SANITATION
DISTRICT.
F. Worker's Compensation Insurance:
The CONSULTANT shall provide such Workers' Compensation Insurance as required by
the Labor Code of the State of California in the amount of the statutory limit, including
Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per
occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a
waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsements unless the insurance
carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement
numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage for Jones
Act claims.
G. Errors and Omissions/Professional Liability:
CONSULTANT shall maintain in full force and effect, throughout the term of this
AGREEMENT, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with
limits in accordance with the provisions of this Paragraph. If the policy of insurance is
written on a "claims made" basis, said policy shall be continued in full force and effect at all
times during the term of this AGREEMENT, and for a period of five (5)years from the date
of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT shall obtain
continuing insurance coverage for the prior acts or omissions of CONSULTANT during the
course of performing services under the term of this AGREEMENT. Said coverage shall be
evidenced by either a new policy evidencing no gap in coverage or by separate extended
"tail" coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence" basis, said policy
shall be continued in full force and effect during the term of this AGREEMENT or until
completion of the services provided for in this AGREEMENT, whichever is later. In the
event of termination of said policy during this period, new coverage shall be obtained for the
required period to insure for the prior ads of CONSULTANT during the course of
performing services under the term of this AGREEMENT.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a
form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention
amounts and the expiration date of said policy, and shall provide renewal certificates not
less than ten (10)days prior to the expiration of each policy term.
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H. Proof of Coverage:
The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and
amendatory endorsements effecting coverage. Said policies and endorsements shall
conform to the requirements herein stated. All certificates and endorsements are to be
received and approved by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, effecting the coverage required, at
any time. The following are approved forms that must be submitted as proof of coverage:
• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent
• Additional Insurance (ISO Form)CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT may
reject alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit Endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
I. Cancellation Notice:
Each insurance policy required herein shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty(30) days' prior written notice. The
Cancellation Section of ACORD Form 25 (5/2010)shall state the required thirty (30)days'
written notification. The policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced until thirty (30)days after written notice is given to the SANITATION
DISTRICT except for nonpayment of premium, which shall require not less than ten (10)
days written notice to the SANITATION DISTRICT. Should there be changes in coverage
or an increase in deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR amounts.
The certified letter must be sent to the attention of Risk Management, and shall be
received by the SANITATION DISTRICT not less than thirty(30) days prior to the
effective date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage
provided to the SANITATION DISTRICT.
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J. Primary Insurance:
All liability policies shall contain a Primary and Non Contributory Clause. Any other
insurance maintained by the SANITATION DISTRICT shall be excess and not
contributing with the insurance provided by CONSULTANT.
K. Separation of Insured:
All liability policies shall contain a "Separation of Insureds"clause.
L. Non-Limiting (if applicable):
Nothing in this document shall be construed as limiting in any way, nor shall it limit the
indemnification provision contained in this AGREEMENT, or the extent to which
CONSULTANT may be held responsible for payment of damages to persons or property.
M. Deductibles and Self-Insured Retentions:
Any deductible and/or self-insured retention must be declared to the SANITATION
DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions
require approval by the SANITATION DISTRICT. At the option of the SANITATION
DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured
retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a
financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
N. Defense Costs:
Liability policies shall have a provision that defense costs for all insureds and additional
insureds are paid in addition to and do not deplete any policy limits.
O. Subconsultants:
The CONSULTANT shall be responsible to establish insurance requirements for any
Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types
reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations
and work.
P. Limits Are Minimums:
If the CONSULTANT maintains higher limits than any minimums shown above, then
SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits
maintained by CONSULTANT.
SECTION 9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this Project under this AGREEMENT by
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CONSULTANT. CONSULTANT shall include a description of the work and services to be
done by each Subconsultant and each of CONSULTANT's Project team member.
CONSULTANT shall include the respective compensation amounts for CONSULTANT and
each Subconsultant, broken down as indicated in Section 4- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project team
members without prior written approval by the SANITATION DISTRICT.
SECTION 10. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered engineers
and a staff of specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this AGREEMENT,
requires the services of a registered engineer, such services hereunder will be performed
under the direct supervision of registered engineers who are registered in California.
SECTION 11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and
audit, any and all books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to discover and
verify that the CONSULTANT is in compliance with all requirements under this
AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that these rights
are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records,
documents and any other evidence of procedures and practices that the SANITATION
DISTRICT determines are necessary to discover and verify all direct and indirect costs, of
whatever nature, which are claimed to have been incurred, or anticipated to be incurred
or to ensure CONSULTANT's compliance with all requirements under this AGREEMENT
during the term of this AGREEMENT and for a period of three (3)years after its
termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION DISTRICT's policy.
The CONSULTANT shall make available to the SANITATION DISTRICT for review and
audit, all project related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT. Upon
SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of
originals of all requested records to the SANITATION DISTRICT. If an audit is
performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT
will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
SECTION 12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor and
nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants , agents or employees of the SANITATION DISTRICT and
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shall obtain no rights to any benefits which accrue to the SANITATION DISTRICT's
employees. CONSULTANT'S staff performing services under the AGREEMENT shall at all
times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to its
staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring,
review, and termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
SECTION 13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or
by depositing said notices in the U.S. mail, registered or certified mail, return receipt
requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Carla Dillon, Project Manager
Notice shall be mailed to CONSULTANT at:
HDR ENGINEERING, INC.
3230 El Camino
Suite 200
Irvine, CA 92602
Attention: Betty Dehoney, CEP, PMP, ENV SP
All communication regarding the Scope of Work, will be addressed to the Project Manager.
Direction from other SANITATION DISTRICT staff must be approved in writing by the
SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT.
SECTION 14. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause,
upon giving thirty(30)days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in accordance
with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in
Section 13- NOTICES.
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SECTION 15. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in compliance
with all federal, state and local directives and executive orders regarding non-discrimination
in employment; and that it agrees to demonstrate positively and aggressively the principle of
equal opportunity in employment.
The CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations
of federal, state and local government in all aspects related to this Agreement and any work
completed for the SANITATION DISTRICT.
SECTION 16. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
SECTION 17. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or interpretation
of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices
of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity
conducting alternate dispute resolution services.
SECTION 18. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this AGREEMENT, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
SECTION 19. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry and
professional standards. If, within the 12-month period following completion of its services,
the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to
meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION
DISTRICT, take all such actions as are necessary to correct or complete the noted
defciency(ies).
SECTION 20. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION
DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the
SANITATION DISTRICT and all of the SANITATION DISTRICTS officers, directors,
employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and
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against any and all claims, damages, liabilities, causes of action, suits, arbitration awards,
losses,judgments, fines, penalties, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs, and all other professional, expert or CONSULTANT's
fees and costs and the SANITATION DISTRICT's general and administrative expenses;
individually, a "Claim", collectively, "Claims")which may arise, pertain to, or relate directly or
indirectly to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers,
agents, employees, CONSULTANT's suppliers, CONSULTANT, Subconsultants,
subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of
any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the
foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the
Indemnified Parties from any Claim arising solely from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C) the independent action of a third party who is neither one of the Indemnified Parties nor
the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's
supplier, CONSULTANT, Subconsultant, subcontractor, nor anyone employed directly
or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more
than one cause if any such cause taken alone would otherwise result in the obligation to
indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of
any of the provisions of this AGREEMENT. Under no circumstances shall the insurance
requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT's
indemnification obligation or other liability hereunder. The terms of this AGREEMENT are
contractual and the result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code Section 1654)
that ambiguities are to be construed against the drafting party, shall not be employed in the
interpretation of this AGREEMENT.
SECTION 21. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the
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event a final judgment, arbitration, award, order, settlement, or other final resolution expressly
determines that the Claim did not arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the CONSULTANT, to any extent, then the
SANITATION DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such Claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier
termination of this AGREEMENT until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
SECTION 22. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, Attachment "L" as applicable, all of which
may be amended from time to time.
SECTION 23. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the State of California
and the Parties submit to jurisdiction in Orange County, in the event any action is brought in
connection with this Agreement or the performance thereof.
SECTION 24. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
SECTION 25. CONFLICT OF INTEREST
The CONSULTANT covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance
of the services contemplated by this AGREEMENT. No person having such interest shall be
employed by or associated with the CONSULTANT.
SECTION 26. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding and agreement between the parties
and supersedes all previous negotiations between them pertaining to the subject matter
thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT by its officers thereunto duly authorized, and by the CONSULTANT,
as of the day and year first above written.
CONSULTANT: HDR ENGINEERING, INC.
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Gregory C. Sebourn, PLS Date
Chair, Board of Directors
By
Kelly Lore Date
Clerk of the Board
Marc Dubois Date
Contracts, Purchasing and Materials
Management Manager
Attachments: Attachment"A" Scope of Work
Attachment"B" Not Used
Attachment"C" Not Attached
Attachment"D" Allowable Direct Costs
Attachment"E" Not Used
Attachment"F" Not Attached
Attachment"G" Not Attached
Attachment"H" Not Used
Attachment"I" Not Used
Attachment"J" Not Attached
Attachment X' Hourly Labor Rate Schedule
Attachment"L"—OCSD Safety Standards
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PROFESSIONAL SERVICES AGREEMENT
This AGREEMENT is made and entered into, to be effective this July 26, 2017 by and
between:
ORANGE COUNTY SANITATION DISTRICT
hereinafter referred to as "SANITATION DISTRICT"
AND
MICHAEL BAKER INTERNATIONAL, INC.
hereinafter referred to as "CONSULTANT"
RECITALS
WHEREAS, pursuant to a Request for Qualifications ("Underlying RFQ")the Board of
Directors of the SANITATION DISTRICT in accordance with Ordinance No. OCSD47, by action
on July 26, 2017 approved the award of a Professional Services Agreement("AGREEMENT")
for CONTRACT NO. CEQA PLAN2017-02, to CONSULTANT to provide services for selected
projects on a Task Order basis, from to ; and
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary CEQA and related services;
and,
WHEREAS, the parties intend by this AGREEMENT to set forth the general terms and
conditions that will apply to any specific project for which CONSULTANT is given a Task Order
by the SANITATION DISTRICT.
NOW, THEREFORE, the SANITATION DISTRICT and the CONSULTANT mutually
agree as follows:
SECTION 1. SCOPE OF AGREEMENT
The SANITATION DISTRICT, at its sole discretion, may, from time to time during the term of
this AGREEMENT, issue a Request for Task Order Proposal ("RFTOP")setting forth a
detailed Scope of Work, to be performed on the identified project, and thereafter, upon
receipt of a Proposal from the CONSULTANT, may issue a directive Task Order to proceed
with the work. The Underlying RFTOP, which includes the CONSULTANT's Proposal, and
the Task Order shall upon execution by the SANITATION DISTRICT, be attached hereto and
become an operative part of this AGREEMENT. Should any conflict or inconsistency exist in
the contract documents identified in this Section, the conflict or inconsistency shall be
resolved by applying the provisions in the highest priority document, which shall be
determined in the following order of priority:
(1 at)the terms of this AGREEMENT and any amendments thereto;
(2nd)the provisions of the RFTOP;
(3rd)the provisions of any written Task Orders, which may be issued from time to time.
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SECTION 2. TASK ORDER ISSUANCE BY SANITATION DISTRICT
The directive Task Order issued by the SANITATION DISTRICT, shall specifically, or by
reference to the RFTOP and corresponding Proposal, set forth the specific detailed terms of
this AGREEMENT that are to apply to the specific project for which the services will be
rendered. Those terms, shall include, but not be limited to, scope, time for performance and
compensation.
SECTION 3. TERM
This AGREEMENT shall commence on the effective date of this AGREEMENT, and
terminate on unless further extended by written agreement by the
SANITATION DISTRICT and CONSULTANT. Any work that is required by a Task Order and
is not finished by the date of termination shall be continued and completed by the
CONSULTANT, and the terms and conditions of this AGREEMENT shall continue in effect for
that time. The SANITATION DISTRICT has the option to renew this AGREEMENT twice,
each with a one year term, for a maximim contract duration of three (3)years total.
SECTION 4. COMPENSATION
The total compensation, payable to the CONSULTANT pursuant to this AGREEMENT, shall
not exceed four hundred thousand dollars ($400,000) per year in accordance with the term
described in Section 3 -TERM. The compensation includes, but is not limited to, fees for
professional services (based on individual burdened labor rates and Subconsultant fees),
overhead, and profit. The specific amount of compensation payable to the CONSULTANT for
services rendered on an individual project, pursuant to a directive Task Order, shall be
established for each Task Order and shall not exceed two hundred thousand dollars
($200,000) per individual Task Order unless authorized by the SANITATION DISTRICT's
Board of Directors. CONSULTANT agrees and acknowledges that the execution of this
AGREEMENT does not in any way guarantee that a Task Order will be issued to
CONSULTANT. Moreover, execution of this AGREEMENT shall not entitle CONSULTANT to
any form of payment or compensation from the SANITATION DISTRICT without the
SANITATION DISTRICT first having issued a written Task Order.
A. Task Order Pricing
The subsections below describe the cost elements to be used in developing the price of
the written Task Orders.
1) Hourly Labor Rate Schedule
The services by the CONSULTANT, pursuant to each project Task Order, shall be billed
to the SANITATION DISTRICT at the hourly rate ranges for each class of employee to
be used, set forth in an Attachment"K"— Hourly Labor Rate Schedule, to be provided
by the SANITATION DISTRICT prior to award of Agreement and incorporated herein.
Hourly Labor Rates shall consist of the:
Burdened Salary Rate consisting of the hourly salary rate, plus benefits for each
employee or labor category specified in Attachment"K" paid by CONSULTANT and
its Subconsultants to their employees.
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Direct Salary rates for CONSULTANT and its Subconsultants may be adjusted
annually on by mutual agreement of the Parties. Escalation of the salary
rate will be in accordance with CPI of LA-Orange County Index. This rate is
determined by the U.S. Department of Labor Statistics, Consumer Price Index— Los
Angeles/Orange County Metropolitan Area.
Burden rates for CONSULTANT and its Subconsultants shall remain fixed through the
term of this AGREEMENT, inclusive of renewals identified in Section 3 -TERM.
Overhead Rate consisting of a verified or negotiated percentage specified in
Attachment"K" and applied to the Burdened Salary Rate for CONSULTANT and its
Subconsultants. The Overhead Rates of CONSULTANT and its Subconsultants shall
remain fixed through the term of this AGREEMENT inclusive of any renewals
identified in Section 3-TERM.
Profit, expressed as a percentage, shall be applied to each Burdened Salary Rate
and applied Overhead Rate. Profit shall be included in the Hourly Labor Rates
specified in Attachment W'. Profit shall remain fixed through the term of this
AGREEMENT, inclusive of any renewals identified in Section 3-TERM.
2) Direct Costs
The SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants the
actual costs of permits and associated fees, travel, licenses, and other services in
accordance with Attachment "D"—Allowable Direct Costs, as may be specified in
each Task Order proposal. The SANITATION DISTRICT shall not pay markup on
such Direct Costs, Equipment rentals, leases, purchases and other direct costs not
agreed to and specified in the Task Order proposal may only be reimbursed by the
SANITATION DISTRICT with its prior written approval.
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel
and business expenses as described in this Section and further described in
Attachment"D"—Allowable Direct Costs to this AGREEMENT. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as considered
by the Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by the
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
htto://www.gsa.goy/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical means
of management of reimbursable costs. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem".
CONSULTANT shall return to the SANITATION DISTRICT any excess
reimbursements.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in writing,
at least fifteen (15)days in advance.
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Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles, Ventura,
San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize a personal vehicle for
local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed at
the discretion of the SANITATION DISTRICT based on reasonableness of meeting
schedules and the amount of time required for travel by the CONSULTANT. Such
determination will be made on a case-by-case basis and at the discretion of the
SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by the IRS shall be utilized for travel meal
reimbursements. Per diem rates shall be applied to meals that are appropriate for
travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"—Allowable Direct Costs of this AGREEMENT.
All incidental expenses shall be included in the Overhead Rate pursuant to
Subsection A.1) Hourly Labor Rate Schedule above.
Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts
and other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D"—Allowable Direct Costs.
3) Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications
in scope of work resulting from Feld investigations and field work required by
Contract. These items may include special equipment, test equipment and tooling
and other materials and services not previously identified. Refer to Attachment"D"—
Allowable Direct Costs for payment information.
4) Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Task Order Proposal will exceed seventy-five percent
(75%) of the not-to-exceed amount of the Task Order, including any approved
additional compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional amount
necessary to complete the services. Any cost incurred in excess of the approved not-
to-exceed amount, without the express written consent of the SANITATION
DISTRICT's authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any notification
requirements contained in the CONSULTANT's invoice and monthly progress report.
Failure to notify the SANITATION DISTRICT that the services cannot be completed
within the authorized not-to-exceed amount of a Task Order is a material breach of
this AGREEMENT.
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B. Additional Work:
For extra work not a part of this AGREEMENT, written authorization from the SANITATION
DISTRICT is required prior to the CONSULTANT undertaking any extra work.
C. Method of Payment:
The CONSULTANT shall submit for approval by the SANITATION DISTRICT, monthly
invoices based on the total services which have been satisfactorily completed and
specifying a percentage of completion. The CONSULTANT's billings shall be certified for
payment by the SANITATION DISTRICT only after the SANITATION DISTRICT has
determined that the CONSULTANT has completed each applicable project task.
CONSULTANT shall submit separate invoices for each Task Order on a monthly basis.
CONSULTANT understands that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
D. Task Order Completion
Upon satisfactory completion of the work performed under each Task Order, and prior to
final payment under each Task Order for such work, or prior settlement upon termination
of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute
and deliver to the SANITATION DISTRICT a release of all claims against the
SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from the operation of
the release in stated amounts to be set forth therein.
E. False Claims
Pursuant to the California False Claims Act (Government Code Sections 12650-12655),
any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT
for compensation under the terms of this AGREEMENT may be held liable for treble
damages and up to a $10,000 civil penalty for each false claim submitted. This Section
shall also be binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim
when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be
presented to an officer or employee of the SANITATION DISTRICT a false claim or
request for payment or approval; (b) knowingly makes, uses, or causes to be made or
used a false record or statement to get a false claim paid or approved by the
SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting
a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses,
or causes to be made or used a false record or statement to conceal, avoid, or decrease
an obligation to the SANITATION DISTRICT; or (a) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of the false
claim.
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F. California Department of Industrial Relations (DIR) Registration and Record of Wages:
To the extent the CONSULTANT's employees and/or Subconsultants who will perform work
during the design and preconstruction phases of a construction contract for which
Prevailing Wage Determinations have been issued by the DIR and as more specifically
defined under Labor Code Section 1720 at seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor
Code Section 1771.4, the work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for
non-compliance with the requirements of Section1776 may be deducted from progress
payments per Section 1776.
Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish
a copy of all certified payroll records to the SANITATION DISTRICT and/or general public
upon request, provided the public request is made through the SANITATION DISTRICT,
the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of
the DIR.
The CONSULTANT and Subconsultants shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulations Section 16461(e).
G. Record of Expenses:
The CONSULTANT shall keep complete and accurate records of all costs and expenses
incidental to services covered by this AGREEMENT. These records will be made available
to the SANITATION DISTRICT upon request.
H. Reallocation of Total Compensation:
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve
a reallocation of the incremental amounts constituting the total compensation payable under
the Task Order, provided that the total compensation for the Task Order is not increased.
SECTIONS. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT
The CONSULTANT shall not contract with any other person or entity to perform the services
required without the written approval of the SANITATION DISTRICT. This AGREEMENT may
not be assigned voluntarily, or by operation of law, without the prior written approval of the
SANITATION DISTRICT. If the CONSULTANT is permitted to subcontract any part of this
AGREEMENT by the SANITATION DISTRICT, the CONSULTANT shall be responsible to the
SANITATION DISTRICT for the acts and omissions of its subcontractor, as it is for persons
directly employed. Nothing contained in this AGREEMENT shall create any contractual
relationship between any subcontractor and the SANITATION DISTRICT. All persons
engaged in the work will be considered employees of the CONSULTANT. The SANITATION
DISTRICT will deal directly with and will make all payments to the CONSULTANT.
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SECTION 6. CHANGES TO SCOPE OF WORK
In the event of a change in the Scope of Work as requested by the SANITATION DISTRICT,
the parties hereto shall execute an amendment to the Task Order, setting forth with
particularity, all new terms of the Task Order, including but not limited to, any additional
compensation.
SECTION 7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. All documents in all forms (electronic, paper, etc.), including, but not limited to, studies,
sketches, drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Professional Services, shall be the
property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of
these documents includes use of, reproduction or reuse of and all incidental rights,
whether or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or any partial
payment for work performed and includes ownership of any and all work product
completed prior to that payment. This Section shall apply whether the CONSULTANT's
Professional Services are terminated: a) by the completion of the AGREEMENT, or b) in
accordance with other provisions of this AGREEMENT. Notwithstanding any other
provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or
uses of the study or deliverable where the subsequent changes or uses are not
authorized or approved by CONSULTANT, provided that the service rendered by
CONSULTANT was not a proximate cause of the damage.
C. Copies of Work Product
Upon completion of the work required for each Task Order, the CONSULTANT shall
deliver to the SANITATION DISTRICT the number of copies specified in the specific Task
Order Scope of Work of the final report containing the CONSULTANT's findings,
conclusions, recommendations, and all supporting documentation and/or final design
drawings and specifications. Each Task Order will define the requirements for the
deliverables.
SECTION 8. INSURANCE
A. General:
i. Insurance shall be issued and underwritten by insurance companies acceptable to the
SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at
least Class VI11, or better, in accordance with the most current A.M. Best's Guide
Rating. However, the SANITATION DISTRICT will accept State Compensation
Insurance Fund, for the required policy of Worker's Compensation Insurance subject
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to the SANITATION DISTRICT's option to require a change in insurer in the event the
State Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose rating drops
below the levels herein specified. Said substitution shall occur within twenty (20)days
of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under this
AGREEMENT.
B. General Liability:
The CONSULTANT shall maintain during the life of this AGREEMENT, including the period
of warranty, Commercial General Liability Insurance written on an occurrence basis
providing the following minimum limits of liability coverage: One Million Dollars ($1,000,000)
per occurrence with One Million Dollars ($1,000,000) aggregate. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual
liability (for this AGREEMENT), products liability/completed operations (including any
product manufactured or assembled), broad form property damage, blanket contractual
liability, independent contractors liability, personal and advertising injury, mobile equipment,
owners and contractors protective liability, and cross liability and severability of interest
clauses. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable,
XCU coverage (Explosion, Collapse and Underground)and Riggers/On Hook Liability must
be included in the General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability:
The minimum limits of general liability and Automotive Liability Insurance required, as set
forth herein, shall be provided for through either a single policy of primary insurance or a
combination of policies of primary and umbrella excess coverage. Umbrella excess liability
coverage shall be issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and automotive liability.
D. Automotive Vehicle Liability Insurance:
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and
other vehicles providing the following minimum limits of liability coverage: Combined single
limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000)
per person for bodily injury and One Million Dollars ($1,000,000) per accident for property
damage. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement.
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E. Drone Liability Insurance:
If a drone will be used, drone liability insurance must be maintained by CONSULTANT in
the amount of One Million Dollars ($1,000,000) in a form acceptable by SANITATION
DISTRICT.
F. Worker's Compensation Insurance:
The CONSULTANT shall provide such Workers' Compensation Insurance as required by
the Labor Code of the State of California in the amount of the statutory limit, including
Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per
occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a
waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsements unless the insurance
carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement
numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage for Jones
Act claims.
G. Errors and Omissions/Professional Liability:
CONSULTANT shall maintain in full force and effect, throughout the term of this
AGREEMENT, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with
limits in accordance with the provisions of this Paragraph. If the policy of insurance is
written on a "claims made" basis, said policy shall be continued in full force and effect at all
times during the term of this AGREEMENT, and for a period of five (5)years from the date
of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT shall obtain
continuing insurance coverage for the prior acts or omissions of CONSULTANT during the
course of performing services under the term of this AGREEMENT. Said coverage shall be
evidenced by either a new policy evidencing no gap in coverage or by separate extended
"tail" coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence" basis, said policy
shall be continued in full force and effect during the term of this AGREEMENT or until
completion of the services provided for in this AGREEMENT, whichever is later. In the
event of termination of said policy during this period, new coverage shall be obtained for the
required period to insure for the prior ads of CONSULTANT during the course of
performing services under the term of this AGREEMENT.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a
form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention
amounts and the expiration date of said policy, and shall provide renewal certificates not
less than ten (10)days prior to the expiration of each policy term.
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H. Proof of Coverage:
The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and
amendatory endorsements effecting coverage. Said policies and endorsements shall
conform to the requirements herein stated. All certificates and endorsements are to be
received and approved by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, effecting the coverage required, at
any time. The following are approved forms that must be submitted as proof of coverage:
• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent
• Additional Insurance (ISO Form)CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT may
reject alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit Endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
I. Cancellation Notice:
Each insurance policy required herein shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty(30) days' prior written notice. The
Cancellation Section of ACORD Form 25 (5/2010)shall state the required thirty (30)days'
written notification. The policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced until thirty (30)days after written notice is given to the SANITATION
DISTRICT except for nonpayment of premium, which shall require not less than ten (10)
days written notice to the SANITATION DISTRICT. Should there be changes in coverage
or an increase in deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR amounts.
The certified letter must be sent to the attention of Risk Management, and shall be
received by the SANITATION DISTRICT not less than thirty(30) days prior to the
effective date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage
provided to the SANITATION DISTRICT.
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J. Primary Insurance:
All liability policies shall contain a Primary and Non Contributory Clause. Any other
insurance maintained by the SANITATION DISTRICT shall be excess and not
contributing with the insurance provided by CONSULTANT.
K. Separation of Insured:
All liability policies shall contain a "Separation of Insureds"clause.
L. Non-Limiting (if applicable):
Nothing in this document shall be construed as limiting in any way, nor shall it limit the
indemnification provision contained in this AGREEMENT, or the extent to which
CONSULTANT may be held responsible for payment of damages to persons or property.
M. Deductibles and Self-Insured Retentions:
Any deductible and/or self-insured retention must be declared to the SANITATION
DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions
require approval by the SANITATION DISTRICT. At the option of the SANITATION
DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured
retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a
financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
N. Defense Costs:
Liability policies shall have a provision that defense costs for all insureds and additional
insureds are paid in addition to and do not deplete any policy limits.
O. Subconsultants:
The CONSULTANT shall be responsible to establish insurance requirements for any
Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types
reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations
and work.
P. Limits Are Minimums:
If the CONSULTANT maintains higher limits than any minimums shown above, then
SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits
maintained by CONSULTANT.
SECTION 9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this Project under this AGREEMENT by
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CONSULTANT. CONSULTANT shall include a description of the work and services to be
done by each Subconsultant and each of CONSULTANT's Project team member.
CONSULTANT shall include the respective compensation amounts for CONSULTANT and
each Subconsultant, broken down as indicated in Section 4- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project team
members without prior written approval by the SANITATION DISTRICT.
SECTION 10. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered engineers
and a staff of specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this AGREEMENT,
requires the services of a registered engineer, such services hereunder will be performed
under the direct supervision of registered engineers who are registered in California.
SECTION 11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and
audit, any and all books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to discover and
verify that the CONSULTANT is in compliance with all requirements under this
AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that these rights
are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records,
documents and any other evidence of procedures and practices that the SANITATION
DISTRICT determines are necessary to discover and verify all direct and indirect costs, of
whatever nature, which are claimed to have been incurred, or anticipated to be incurred
or to ensure CONSULTANT's compliance with all requirements under this AGREEMENT
during the term of this AGREEMENT and for a period of three (3)years after its
termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION DISTRICT's policy.
The CONSULTANT shall make available to the SANITATION DISTRICT for review and
audit, all project related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT. Upon
SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of
originals of all requested records to the SANITATION DISTRICT. If an audit is
performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT
will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
SECTION 12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor and
nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants , agents or employees of the SANITATION DISTRICT and
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shall obtain no rights to any benefits which accrue to the SANITATION DISTRICT's
employees. CONSULTANT'S staff performing services under the AGREEMENT shall at all
times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to its
staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring,
review, and termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
SECTION 13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or
by depositing said notices in the U.S. mail, registered or certified mail, return receipt
requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Carla Dillon, Project Manager
Notice shall be mailed to CONSULTANT at:
MICHAEL BAKER INTERNATIONAL, INC.
5 Hutton Centre Drive
Suite 500
Santa Ana, CA 92707
Attention: Richard Beck, CEP, PAS, CPESC
All communication regarding the Scope of Work, will be addressed to the Project Manager.
Direction from other SANITATION DISTRICT staff must be approved in writing by the
SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT.
SECTION 14. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause,
upon giving thirty(30)days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in accordance
with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in
Section 13- NOTICES.
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SECTION 15. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in compliance
with all federal, state and local directives and executive orders regarding non-discrimination
in employment; and that it agrees to demonstrate positively and aggressively the principle of
equal opportunity in employment.
The CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations
of federal, state and local government in all aspects related to this Agreement and any work
completed for the SANITATION DISTRICT.
SECTION 16. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
SECTION 17. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or interpretation
of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices
of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity
conducting alternate dispute resolution services.
SECTION 18. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this AGREEMENT, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
SECTION 19. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry and
professional standards. If, within the 12-month period following completion of its services,
the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to
meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION
DISTRICT, take all such actions as are necessary to correct or complete the noted
defciency(ies).
SECTION 20. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION
DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the
SANITATION DISTRICT and all of the SANITATION DISTRICTS officers, directors,
employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and
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against any and all claims, damages, liabilities, causes of action, suits, arbitration awards,
losses,judgments, fines, penalties, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs, and all other professional, expert or CONSULTANT's
fees and costs and the SANITATION DISTRICT's general and administrative expenses;
individually, a "Claim", collectively, "Claims")which may arise, pertain to, or relate directly or
indirectly to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers,
agents, employees, CONSULTANT's suppliers, CONSULTANT, Subconsultants,
subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of
any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the
foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the
Indemnified Parties from any Claim arising solely from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C) the independent action of a third party who is neither one of the Indemnified Parties nor
the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's
supplier, CONSULTANT, Subconsultant, subcontractor, nor anyone employed directly
or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more
than one cause if any such cause taken alone would otherwise result in the obligation to
indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of
any of the provisions of this AGREEMENT. Under no circumstances shall the insurance
requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT's
indemnification obligation or other liability hereunder. The terms of this AGREEMENT are
contractual and the result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code Section 1654)
that ambiguities are to be construed against the drafting party, shall not be employed in the
interpretation of this AGREEMENT.
SECTION 21. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the
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event a final judgment, arbitration, award, order, settlement, or other final resolution expressly
determines that the Claim did not arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the CONSULTANT, to any extent, then the
SANITATION DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such Claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier
termination of this AGREEMENT until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
SECTION 22. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, Attachment "L" as applicable, all of which
may be amended from time to time.
SECTION 23. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the State of California
and the Parties submit to jurisdiction in Orange County, in the event any action is brought in
connection with this Agreement or the performance thereof.
SECTION 24. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
SECTION 25. CONFLICT OF INTEREST
The CONSULTANT covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance
of the services contemplated by this AGREEMENT. No person having such interest shall be
employed by or associated with the CONSULTANT.
SECTION 26. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding and agreement between the parties
and supersedes all previous negotiations between them pertaining to the subject matter
thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT by its officers thereunto duly authorized, and by the CONSULTANT,
as of the day and year first above written.
CONSULTANT: MICHAEL BAKER INTERNATIONAL, INC.
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Gregory C. Sebourn, PLS Date
Chair, Board of Directors
By
Kelly Lore Date
Clerk of the Board
Marc Dubois Date
Contracts, Purchasing and Materials
Management Manager
Attachments: Attachment"A" Scope of Work
Attachment"B" Not Used
Attachment"C" Not Attached
Attachment"D" Allowable Direct Costs
Attachment"E" Not Used
Attachment"F" Not Attached
Attachment"G" Not Attached
Attachment"H" Not Used
Attachment"I" Not Used
Attachment"J" Not Attached
Attachment X' Hourly Labor Rate Schedule
Attachment"L"—OCSD Safety Standards
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PROFESSIONAL SERVICES AGREEMENT
This AGREEMENT is made and entered into, to be effective this July 26, 2017 by and
between:
ORANGE COUNTY SANITATION DISTRICT
hereinafter referred to as "SANITATION DISTRICT"
AND
HELIX ENVIRONMENTAL PLANNING, INC.
hereinafter referred to as "CONSULTANT"
RECITALS
WHEREAS, pursuant to a Request for Qualifications ("Underlying RFQ")the Board of
Directors of the SANITATION DISTRICT in accordance with Ordinance No. OCSD47, by action
on July 26, 2017 approved the award of a Professional Services Agreement("AGREEMENT")
for CONTRACT NO. CEQA PLAN2017-03, to CONSULTANT to provide services for selected
projects on a Task Order basis, from to ; and
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary CEQA and related services;
and,
WHEREAS, the parties intend by this AGREEMENT to set forth the general terms and
conditions that will apply to any specific project for which CONSULTANT is given a Task Order
by the SANITATION DISTRICT.
NOW, THEREFORE, the SANITATION DISTRICT and the CONSULTANT mutually
agree as follows:
SECTION 1. SCOPE OF AGREEMENT
The SANITATION DISTRICT, at its sole discretion, may, from time to time during the term of
this AGREEMENT, issue a Request for Task Order Proposal ("RFTOP")setting forth a
detailed Scope of Work, to be performed on the identified project, and thereafter, upon
receipt of a Proposal from the CONSULTANT, may issue a directive Task Order to proceed
with the work. The Underlying RFTOP, which includes the CONSULTANT's Proposal, and
the Task Order shall upon execution by the SANITATION DISTRICT, be attached hereto and
become an operative part of this AGREEMENT. Should any conflict or inconsistency exist in
the contract documents identified in this Section, the conflict or inconsistency shall be
resolved by applying the provisions in the highest priority document, which shall be
determined in the following order of priority:
(1 at)the terms of this AGREEMENT and any amendments thereto;
(2nd)the provisions of the RFTOP;
(3rd)the provisions of any written Task Orders, which may be issued from time to time.
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SECTION 2. TASK ORDER ISSUANCE BY SANITATION DISTRICT
The directive Task Order issued by the SANITATION DISTRICT, shall specifically, or by
reference to the RFTOP and corresponding Proposal, set forth the specific detailed terms of
this AGREEMENT that are to apply to the specific project for which the services will be
rendered. Those terms, shall include, but not be limited to, scope, time for performance and
compensation.
SECTION 3. TERM
This AGREEMENT shall commence on the effective date of this AGREEMENT, and
terminate on unless further extended by written agreement by the
SANITATION DISTRICT and CONSULTANT. Any work that is required by a Task Order and
is not finished by the date of termination shall be continued and completed by the
CONSULTANT, and the terms and conditions of this AGREEMENT shall continue in effect for
that time. The SANITATION DISTRICT has the option to renew this AGREEMENT twice,
each with a one year term, for a maximim contract duration of three (3)years total.
SECTION 4. COMPENSATION
The total compensation, payable to the CONSULTANT pursuant to this AGREEMENT, shall
not exceed four hundred thousand dollars ($400,000) per year in accordance with the term
described in Section 3 -TERM. The compensation includes, but is not limited to, fees for
professional services (based on individual burdened labor rates and Subconsultant fees),
overhead, and profit. The specific amount of compensation payable to the CONSULTANT for
services rendered on an individual project, pursuant to a directive Task Order, shall be
established for each Task Order and shall not exceed two hundred thousand dollars
($200,000) per individual Task Order unless authorized by the SANITATION DISTRICT's
Board of Directors. CONSULTANT agrees and acknowledges that the execution of this
AGREEMENT does not in any way guarantee that a Task Order will be issued to
CONSULTANT. Moreover, execution of this AGREEMENT shall not entitle CONSULTANT to
any form of payment or compensation from the SANITATION DISTRICT without the
SANITATION DISTRICT first having issued a written Task Order.
A. Task Order Pricing
The subsections below describe the cost elements to be used in developing the price of
the written Task Orders.
1) Hourly Labor Rate Schedule
The services by the CONSULTANT, pursuant to each project Task Order, shall be billed
to the SANITATION DISTRICT at the hourly rate ranges for each class of employee to
be used, set forth in an Attachment"K"— Hourly Labor Rate Schedule, to be provided
by the SANITATION DISTRICT prior to award of Agreement and incorporated herein.
Hourly Labor Rates shall consist of the:
Burdened Salary Rate consisting of the hourly salary rate, plus benefits for each
employee or labor category specified in Attachment"K' paid by CONSULTANT and
its Subconsultants to their employees.
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Direct Salary rates for CONSULTANT and its Subconsultants may be adjusted
annually on by mutual agreement of the Parties. Escalation of the salary
rate will be in accordance with CPI of LA-Orange County Index. This rate is
determined by the U.S. Department of Labor Statistics, Consumer Price Index— Los
Angeles/Orange County Metropolitan Area.
Burden rates for CONSULTANT and its Subconsultants shall remain fixed through the
term of this AGREEMENT, inclusive of renewals identified in Section 3 -TERM.
Overhead Rate consisting of a verified or negotiated percentage specified in
Attachment"K' and applied to the Burdened Salary Rate for CONSULTANT and its
Subconsultants. The Overhead Rates of CONSULTANT and its Subconsultants shall
remain fixed through the term of this AGREEMENT inclusive of any renewals
identified in Section 3-TERM.
Profit, expressed as a percentage, shall be applied to each Burdened Salary Rate
and applied Overhead Rate. Profit shall be included in the Hourly Labor Rates
specified in Attachment W'. Profit shall remain fixed through the term of this
AGREEMENT, inclusive of any renewals identified in Section 3-TERM.
2) Direct Costs
The SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants the
actual costs of permits and associated fees, travel, licenses, and other services in
accordance with Attachment "D"—Allowable Direct Costs, as may be specified in
each Task Order proposal. The SANITATION DISTRICT shall not pay markup on
such Direct Costs, Equipment rentals, leases, purchases and other direct costs not
agreed to and specified in the Task Order proposal may only be reimbursed by the
SANITATION DISTRICT with its prior written approval.
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel
and business expenses as described in this Section and further described in
Attachment"D"—Allowable Direct Costs to this AGREEMENT. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as considered
by the Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by the
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
htto://www.gsa.goy/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical means
of management of reimbursable costs. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem".
CONSULTANT shall return to the SANITATION DISTRICT any excess
reimbursements.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in writing,
at least fifteen (15)days in advance.
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Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles, Ventura,
San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize a personal vehicle for
local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed at
the discretion of the SANITATION DISTRICT based on reasonableness of meeting
schedules and the amount of time required for travel by the CONSULTANT. Such
determination will be made on a case-by-case basis and at the discretion of the
SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by the IRS shall be utilized for travel meal
reimbursements. Per diem rates shall be applied to meals that are appropriate for
travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"—Allowable Direct Costs of this AGREEMENT.
All incidental expenses shall be included in the Overhead Rate pursuant to
Subsection A.1) Hourly Labor Rate Schedule above.
Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts
and other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D"—Allowable Direct Costs.
3) Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications
in scope of work resulting from Feld investigations and field work required by
Contract. These items may include special equipment, test equipment and tooling
and other materials and services not previously identified. Refer to Attachment"D"—
Allowable Direct Costs for payment information.
4) Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Task Order Proposal will exceed seventy-five percent
(75%) of the not-to-exceed amount of the Task Order, including any approved
additional compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional amount
necessary to complete the services. Any cost incurred in excess of the approved not-
to-exceed amount, without the express written consent of the SANITATION
DISTRICT's authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any notification
requirements contained in the CONSULTANT's invoice and monthly progress report.
Failure to notify the SANITATION DISTRICT that the services cannot be completed
within the authorized not-to-exceed amount of a Task Order is a material breach of
this AGREEMENT.
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B. Additional Work:
For extra work not a part of this AGREEMENT, written authorization from the SANITATION
DISTRICT is required prior to the CONSULTANT undertaking any extra work.
C. Method of Payment:
The CONSULTANT shall submit for approval by the SANITATION DISTRICT, monthly
invoices based on the total services which have been satisfactorily completed and
specifying a percentage of completion. The CONSULTANT's billings shall be certified for
payment by the SANITATION DISTRICT only after the SANITATION DISTRICT has
determined that the CONSULTANT has completed each applicable project task.
CONSULTANT shall submit separate invoices for each Task Order on a monthly basis.
CONSULTANT understands that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
D. Task Order Completion
Upon satisfactory completion of the work performed under each Task Order, and prior to
final payment under each Task Order for such work, or prior settlement upon termination
of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute
and deliver to the SANITATION DISTRICT a release of all claims against the
SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from the operation of
the release in stated amounts to be set forth therein.
E. False Claims
Pursuant to the California False Claims Act (Government Code Sections 12650-12655),
any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT
for compensation under the terms of this AGREEMENT may be held liable for treble
damages and up to a $10,000 civil penalty for each false claim submitted. This Section
shall also be binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim
when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be
presented to an officer or employee of the SANITATION DISTRICT a false claim or
request for payment or approval; (b) knowingly makes, uses, or causes to be made or
used a false record or statement to get a false claim paid or approved by the
SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting
a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses,
or causes to be made or used a false record or statement to conceal, avoid, or decrease
an obligation to the SANITATION DISTRICT; or (a) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of the false
claim.
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F. California Department of Industrial Relations (DIR) Registration and Record of Wages:
To the extent the CONSULTANT's employees and/or Subconsultants who will perform work
during the design and preconstruction phases of a construction contract for which
Prevailing Wage Determinations have been issued by the DIR and as more specifically
defined under Labor Code Section 1720 at seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor
Code Section 1771.4, the work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for
non-compliance with the requirements of Section1776 may be deducted from progress
payments per Section 1776.
Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish
a copy of all certified payroll records to the SANITATION DISTRICT and/or general public
upon request, provided the public request is made through the SANITATION DISTRICT,
the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of
the DIR.
The CONSULTANT and Subconsultants shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulations Section 16461(e).
G. Record of Expenses:
The CONSULTANT shall keep complete and accurate records of all costs and expenses
incidental to services covered by this AGREEMENT. These records will be made available
to the SANITATION DISTRICT upon request.
H. Reallocation of Total Compensation:
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve
a reallocation of the incremental amounts constituting the total compensation payable under
the Task Order, provided that the total compensation for the Task Order is not increased.
SECTIONS. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT
The CONSULTANT shall not contract with any other person or entity to perform the services
required without the written approval of the SANITATION DISTRICT. This AGREEMENT may
not be assigned voluntarily, or by operation of law, without the prior written approval of the
SANITATION DISTRICT. If the CONSULTANT is permitted to subcontract any part of this
AGREEMENT by the SANITATION DISTRICT, the CONSULTANT shall be responsible to the
SANITATION DISTRICT for the acts and omissions of its subcontractor, as it is for persons
directly employed. Nothing contained in this AGREEMENT shall create any contractual
relationship between any subcontractor and the SANITATION DISTRICT. All persons
engaged in the work will be considered employees of the CONSULTANT. The SANITATION
DISTRICT will deal directly with and will make all payments to the CONSULTANT.
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SECTION 6. CHANGES TO SCOPE OF WORK
In the event of a change in the Scope of Work as requested by the SANITATION DISTRICT,
the parties hereto shall execute an amendment to the Task Order, setting forth with
particularity, all new terms of the Task Order, including but not limited to, any additional
compensation.
SECTION 7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. All documents in all forms (electronic, paper, etc.), including, but not limited to, studies,
sketches, drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Professional Services, shall be the
property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of
these documents includes use of, reproduction or reuse of and all incidental rights,
whether or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or any partial
payment for work performed and includes ownership of any and all work product
completed prior to that payment. This Section shall apply whether the CONSULTANT's
Professional Services are terminated: a) by the completion of the AGREEMENT, or b) in
accordance with other provisions of this AGREEMENT. Notwithstanding any other
provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or
uses of the study or deliverable where the subsequent changes or uses are not
authorized or approved by CONSULTANT, provided that the service rendered by
CONSULTANT was not a proximate cause of the damage.
C. Copies of Work Product
Upon completion of the work required for each Task Order, the CONSULTANT shall
deliver to the SANITATION DISTRICT the number of copies specified in the specific Task
Order Scope of Work of the final report containing the CONSULTANT's findings,
conclusions, recommendations, and all supporting documentation and/or final design
drawings and specifications. Each Task Order will define the requirements for the
deliverables.
SECTION 8. INSURANCE
A. General:
i. Insurance shall be issued and underwritten by insurance companies acceptable to the
SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at
least Class VI11, or better, in accordance with the most current A.M. Best's Guide
Rating. However, the SANITATION DISTRICT will accept State Compensation
Insurance Fund, for the required policy of Worker's Compensation Insurance subject
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to the SANITATION DISTRICT's option to require a change in insurer in the event the
State Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose rating drops
below the levels herein specified. Said substitution shall occur within twenty (20)days
of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under this
AGREEMENT.
B. General Liability:
The CONSULTANT shall maintain during the life of this AGREEMENT, including the period
of warranty, Commercial General Liability Insurance written on an occurrence basis
providing the following minimum limits of liability coverage: One Million Dollars ($1,000,000)
per occurrence with One Million Dollars ($1,000,000) aggregate. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual
liability (for this AGREEMENT), products liability/completed operations (including any
product manufactured or assembled), broad form property damage, blanket contractual
liability, independent contractors liability, personal and advertising injury, mobile equipment,
owners and contractors protective liability, and cross liability and severability of interest
clauses. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable,
XCU coverage (Explosion, Collapse and Underground)and Riggers/On Hook Liability must
be included in the General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability:
The minimum limits of general liability and Automotive Liability Insurance required, as set
forth herein, shall be provided for through either a single policy of primary insurance or a
combination of policies of primary and umbrella excess coverage. Umbrella excess liability
coverage shall be issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and automotive liability.
D. Automotive Vehicle Liability Insurance:
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and
other vehicles providing the following minimum limits of liability coverage: Combined single
limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000)
per person for bodily injury and One Million Dollars ($1,000,000) per accident for property
damage. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement.
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E. Drone Liability Insurance:
If a drone will be used, drone liability insurance must be maintained by CONSULTANT in
the amount of One Million Dollars ($1,000,000) in a form acceptable by SANITATION
DISTRICT.
F. Worker's Compensation Insurance:
The CONSULTANT shall provide such Workers' Compensation Insurance as required by
the Labor Code of the State of California in the amount of the statutory limit, including
Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per
occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a
waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsements unless the insurance
carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement
numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage for Jones
Act claims.
G. Errors and Omissions/Professional Liability:
CONSULTANT shall maintain in full force and effect, throughout the term of this
AGREEMENT, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with
limits in accordance with the provisions of this Paragraph. If the policy of insurance is
written on a "claims made" basis, said policy shall be continued in full force and effect at all
times during the term of this AGREEMENT, and for a period of five (5)years from the date
of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT shall obtain
continuing insurance coverage for the prior acts or omissions of CONSULTANT during the
course of performing services under the term of this AGREEMENT. Said coverage shall be
evidenced by either a new policy evidencing no gap in coverage or by separate extended
"tail" coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence" basis, said policy
shall be continued in full force and effect during the term of this AGREEMENT or until
completion of the services provided for in this AGREEMENT, whichever is later. In the
event of termination of said policy during this period, new coverage shall be obtained for the
required period to insure for the prior ads of CONSULTANT during the course of
performing services under the term of this AGREEMENT.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a
form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention
amounts and the expiration date of said policy, and shall provide renewal certificates not
less than ten (10)days prior to the expiration of each policy term.
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H. Proof of Coverage:
The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and
amendatory endorsements effecting coverage. Said policies and endorsements shall
conform to the requirements herein stated. All certificates and endorsements are to be
received and approved by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, effecting the coverage required, at
any time. The following are approved forms that must be submitted as proof of coverage:
• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent
• Additional Insurance (ISO Form)CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT may
reject alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit Endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
I. Cancellation Notice:
Each insurance policy required herein shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty(30) days' prior written notice. The
Cancellation Section of ACORD Form 25 (5/2010)shall state the required thirty (30)days'
written notification. The policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced until thirty (30)days after written notice is given to the SANITATION
DISTRICT except for nonpayment of premium, which shall require not less than ten (10)
days written notice to the SANITATION DISTRICT. Should there be changes in coverage
or an increase in deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR amounts.
The certified letter must be sent to the attention of Risk Management, and shall be
received by the SANITATION DISTRICT not less than thirty(30) days prior to the
effective date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage
provided to the SANITATION DISTRICT.
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J. Primary Insurance:
All liability policies shall contain a Primary and Non Contributory Clause. Any other
insurance maintained by the SANITATION DISTRICT shall be excess and not
contributing with the insurance provided by CONSULTANT.
K. Separation of Insured:
All liability policies shall contain a "Separation of Insureds"clause.
L. Non-Limiting (if applicable):
Nothing in this document shall be construed as limiting in any way, nor shall it limit the
indemnification provision contained in this AGREEMENT, or the extent to which
CONSULTANT may be held responsible for payment of damages to persons or property.
M. Deductibles and Self-Insured Retentions:
Any deductible and/or self-insured retention must be declared to the SANITATION
DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions
require approval by the SANITATION DISTRICT. At the option of the SANITATION
DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured
retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a
financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
N. Defense Costs:
Liability policies shall have a provision that defense costs for all insureds and additional
insureds are paid in addition to and do not deplete any policy limits.
O. Subconsultants:
The CONSULTANT shall be responsible to establish insurance requirements for any
Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types
reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations
and work.
P. Limits Are Minimums:
If the CONSULTANT maintains higher limits than any minimums shown above, then
SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits
maintained by CONSULTANT.
SECTION 9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this Project under this AGREEMENT by
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CONSULTANT. CONSULTANT shall include a description of the work and services to be
done by each Subconsultant and each of CONSULTANT's Project team member.
CONSULTANT shall include the respective compensation amounts for CONSULTANT and
each Subconsultant, broken down as indicated in Section 4- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project team
members without prior written approval by the SANITATION DISTRICT.
SECTION 10. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered engineers
and a staff of specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this AGREEMENT,
requires the services of a registered engineer, such services hereunder will be performed
under the direct supervision of registered engineers who are registered in California.
SECTION 11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and
audit, any and all books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to discover and
verify that the CONSULTANT is in compliance with all requirements under this
AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that these rights
are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records,
documents and any other evidence of procedures and practices that the SANITATION
DISTRICT determines are necessary to discover and verify all direct and indirect costs, of
whatever nature, which are claimed to have been incurred, or anticipated to be incurred
or to ensure CONSULTANT's compliance with all requirements under this AGREEMENT
during the term of this AGREEMENT and for a period of three (3)years after its
termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION DISTRICT's policy.
The CONSULTANT shall make available to the SANITATION DISTRICT for review and
audit, all project related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT. Upon
SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of
originals of all requested records to the SANITATION DISTRICT. If an audit is
performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT
will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
SECTION 12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor and
nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants , agents or employees of the SANITATION DISTRICT and
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shall obtain no rights to any benefits which accrue to the SANITATION DISTRICT's
employees. CONSULTANT'S staff performing services under the AGREEMENT shall at all
times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to its
staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring,
review, and termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
SECTION 13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or
by depositing said notices in the U.S. mail, registered or certified mail, return receipt
requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Carla Dillon, Project Manager
Notice shall be mailed to CONSULTANT at:
HELIX ENVIRONMENTAL PLANNING, INC.
7578 El Cajon Boulevard
Suite 200
La Mesa, CA 91942
Attention: Michael Schwerin
All communication regarding the Scope of Work, will be addressed to the Project Manager.
Direction from other SANITATION DISTRICT staff must be approved in writing by the
SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT.
SECTION 14. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause,
upon giving thirty(30)days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in accordance
with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in
Section 13- NOTICES.
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SECTION 15. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in compliance
with all federal, state and local directives and executive orders regarding non-discrimination
in employment; and that it agrees to demonstrate positively and aggressively the principle of
equal opportunity in employment.
The CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations
of federal, state and local government in all aspects related to this Agreement and any work
completed for the SANITATION DISTRICT.
SECTION 16. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
SECTION 17. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or interpretation
of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices
of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity
conducting alternate dispute resolution services.
SECTION 18. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this AGREEMENT, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
SECTION 19. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry and
professional standards. If, within the 12-month period following completion of its services,
the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to
meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION
DISTRICT, take all such actions as are necessary to correct or complete the noted
defciency(ies).
SECTION 20. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION
DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the
SANITATION DISTRICT and all of the SANITATION DISTRICTS officers, directors,
employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and
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against any and all claims, damages, liabilities, causes of action, suits, arbitration awards,
losses,judgments, fines, penalties, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs, and all other professional, expert or CONSULTANT's
fees and costs and the SANITATION DISTRICT's general and administrative expenses;
individually, a "Claim", collectively, "Claims")which may arise, pertain to, or relate directly or
indirectly to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers,
agents, employees, CONSULTANT's suppliers, CONSULTANT, Subconsultants,
subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of
any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the
foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the
Indemnified Parties from any Claim arising solely from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C) the independent action of a third party who is neither one of the Indemnified Parties nor
the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's
supplier, CONSULTANT, Subconsultant, subcontractor, nor anyone employed directly
or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more
than one cause if any such cause taken alone would otherwise result in the obligation to
indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of
any of the provisions of this AGREEMENT. Under no circumstances shall the insurance
requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT's
indemnification obligation or other liability hereunder. The terms of this AGREEMENT are
contractual and the result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code Section 1654)
that ambiguities are to be construed against the drafting party, shall not be employed in the
interpretation of this AGREEMENT.
SECTION 21. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the
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event a final judgment, arbitration, award, order, settlement, or other final resolution expressly
determines that the Claim did not arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the CONSULTANT, to any extent, then the
SANITATION DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such Claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier
termination of this AGREEMENT until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
SECTION 22. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, Attachment "L" as applicable, all of which
may be amended from time to time.
SECTION 23. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the State of California
and the Parties submit to jurisdiction in Orange County, in the event any action is brought in
connection with this Agreement or the performance thereof.
SECTION 24. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
SECTION 25. CONFLICT OF INTEREST
The CONSULTANT covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance
of the services contemplated by this AGREEMENT. No person having such interest shall be
employed by or associated with the CONSULTANT.
SECTION 26. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding and agreement between the parties
and supersedes all previous negotiations between them pertaining to the subject matter
thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT by its officers thereunto duly authorized, and by the CONSULTANT,
as of the day and year first above written.
CONSULTANT: HELIX ENVIRONMENTAL PLANNING, INC.
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Gregory C. Sebourn, PLS Date
Chair, Board of Directors
By
Kelly Lore Date
Clerk of the Board
Marc Dubois Date
Contracts, Purchasing and Materials
Management Manager
Attachments: Attachment"A" Scope of Work
Attachment'B" Not Used
Attachment"C' Not Attached
Attachment"D" Allowable Direct Costs
Attachment"E" Not Used
Attachment"F" Not Attached
Attachment"G" Not Attached
Attachment"H" Not Used
Attachment"I" Not Used
Attachment"J" Not Attached
Attachment"K" Hourly Labor Rate Schedule
Attachment"L"—OCSD Safety Standards
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PROFESSIONAL SERVICES AGREEMENT
This AGREEMENT is made and entered into, to be effective this July 26, 2017 by and
between:
ORANGE COUNTY SANITATION DISTRICT
hereinafter referred to as "SANITATION DISTRICT"
AND
ESA
hereinafter referred to as "CONSULTANT"
RECITALS
WHEREAS, pursuant to a Request for Qualifications ("Underlying RFQ")the Board of
Directors of the SANITATION DISTRICT in accordance with Ordinance No. OCSD47, by action
on July 26, 2017 approved the award of a Professional Services Agreement("AGREEMENT")
for CONTRACT NO. CEQA PLAN2017-04, to CONSULTANT to provide services for selected
projects on a Task Order basis, from to ; and
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary CEQA and related services;
and,
WHEREAS, the parties intend by this AGREEMENT to set forth the general terms and
conditions that will apply to any specific project for which CONSULTANT is given a Task Order
by the SANITATION DISTRICT.
NOW, THEREFORE, the SANITATION DISTRICT and the CONSULTANT mutually
agree as follows:
SECTION 1. SCOPE OF AGREEMENT
The SANITATION DISTRICT, at its sole discretion, may, from time to time during the term of
this AGREEMENT, issue a Request for Task Order Proposal ("RFTOP")setting forth a
detailed Scope of Work, to be performed on the identified project, and thereafter, upon
receipt of a Proposal from the CONSULTANT, may issue a directive Task Order to proceed
with the work. The Underlying RFTOP, which includes the CONSULTANT's Proposal, and
the Task Order shall upon execution by the SANITATION DISTRICT, be attached hereto and
become an operative part of this AGREEMENT. Should any conflict or inconsistency exist in
the contract documents identified in this Section, the conflict or inconsistency shall be
resolved by applying the provisions in the highest priority document, which shall be
determined in the following order of priority:
(1 at)the terms of this AGREEMENT and any amendments thereto;
(2nd)the provisions of the RFTOP;
(3rd)the provisions of any written Task Orders, which may be issued from time to time.
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SECTION 2. TASK ORDER ISSUANCE BY SANITATION DISTRICT
The directive Task Order issued by the SANITATION DISTRICT, shall specifically, or by
reference to the RFTOP and corresponding Proposal, set forth the specific detailed terms of
this AGREEMENT that are to apply to the specific project for which the services will be
rendered. Those terms, shall include, but not be limited to, scope, time for performance and
compensation.
SECTION 3. TERM
This AGREEMENT shall commence on the effective date of this AGREEMENT, and
terminate on unless further extended by written agreement by the
SANITATION DISTRICT and CONSULTANT. Any work that is required by a Task Order and
is not finished by the date of termination shall be continued and completed by the
CONSULTANT, and the terms and conditions of this AGREEMENT shall continue in effect for
that time. The SANITATION DISTRICT has the option to renew this AGREEMENT twice,
each with a one year term, for a maximim contract duration of three (3)years total.
SECTION 4. COMPENSATION
The total compensation, payable to the CONSULTANT pursuant to this AGREEMENT, shall
not exceed four hundred thousand dollars ($400,000) per year in accordance with the term
described in Section 3 -TERM. The compensation includes, but is not limited to, fees for
professional services (based on individual burdened labor rates and Subconsultant fees),
overhead, and profit. The specific amount of compensation payable to the CONSULTANT for
services rendered on an individual project, pursuant to a directive Task Order, shall be
established for each Task Order and shall not exceed two hundred thousand dollars
($200,000) per individual Task Order unless authorized by the SANITATION DISTRICT's
Board of Directors. CONSULTANT agrees and acknowledges that the execution of this
AGREEMENT does not in any way guarantee that a Task Order will be issued to
CONSULTANT. Moreover, execution of this AGREEMENT shall not entitle CONSULTANT to
any form of payment or compensation from the SANITATION DISTRICT without the
SANITATION DISTRICT first having issued a written Task Order.
A. Task Order Pricing
The subsections below describe the cost elements to be used in developing the price of
the written Task Orders.
1) Hourly Labor Rate Schedule
The services by the CONSULTANT, pursuant to each project Task Order, shall be billed
to the SANITATION DISTRICT at the hourly rate ranges for each class of employee to
be used, set forth in an Attachment"K"— Hourly Labor Rate Schedule, to be provided
by the SANITATION DISTRICT prior to award of Agreement and incorporated herein.
Hourly Labor Rates shall consist of the:
Burdened Salary Rate consisting of the hourly salary rate, plus benefits for each
employee or labor category specified in Attachment"K" paid by CONSULTANT and
its Subconsultants to their employees.
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Direct Salary rates for CONSULTANT and its Subconsultants may be adjusted
annually on by mutual agreement of the Parties. Escalation of the salary
rate will be in accordance with CPI of LA-Orange County Index. This rate is
determined by the U.S. Department of Labor Statistics, Consumer Price Index— Los
Angeles/Orange County Metropolitan Area.
Burden rates for CONSULTANT and its Subconsultants shall remain fixed through the
term of this AGREEMENT, inclusive of renewals identified in Section 3 -TERM.
Overhead Rate consisting of a verified or negotiated percentage specified in
Attachment"K" and applied to the Burdened Salary Rate for CONSULTANT and its
Subconsultants. The Overhead Rates of CONSULTANT and its Subconsultants shall
remain fixed through the term of this AGREEMENT inclusive of any renewals
identified in Section 3-TERM.
Profit, expressed as a percentage, shall be applied to each Burdened Salary Rate
and applied Overhead Rate. Profit shall be included in the Hourly Labor Rates
specified in Attachment W'. Profit shall remain fixed through the term of this
AGREEMENT, inclusive of any renewals identified in Section 3-TERM.
2) Direct Costs
The SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants the
actual costs of permits and associated fees, travel, licenses, and other services in
accordance with Attachment "D"—Allowable Direct Costs, as may be specified in
each Task Order proposal. The SANITATION DISTRICT shall not pay markup on
such Direct Costs, Equipment rentals, leases, purchases and other direct costs not
agreed to and specified in the Task Order proposal may only be reimbursed by the
SANITATION DISTRICT with its prior written approval.
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel
and business expenses as described in this Section and further described in
Attachment"D"—Allowable Direct Costs to this AGREEMENT. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as considered
by the Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by the
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
htto://www.gsa.goy/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical means
of management of reimbursable costs. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem".
CONSULTANT shall return to the SANITATION DISTRICT any excess
reimbursements.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in writing,
at least fifteen (15)days in advance.
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Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles, Ventura,
San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize a personal vehicle for
local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed at
the discretion of the SANITATION DISTRICT based on reasonableness of meeting
schedules and the amount of time required for travel by the CONSULTANT. Such
determination will be made on a case-by-case basis and at the discretion of the
SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by the IRS shall be utilized for travel meal
reimbursements. Per diem rates shall be applied to meals that are appropriate for
travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"—Allowable Direct Costs of this AGREEMENT.
All incidental expenses shall be included in the Overhead Rate pursuant to
Subsection A.1) Hourly Labor Rate Schedule above.
Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts
and other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D"—Allowable Direct Costs.
3) Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications
in scope of work resulting from Feld investigations and field work required by
Contract. These items may include special equipment, test equipment and tooling
and other materials and services not previously identified. Refer to Attachment"D"—
Allowable Direct Costs for payment information.
4) Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Task Order Proposal will exceed seventy-five percent
(75%) of the not-to-exceed amount of the Task Order, including any approved
additional compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional amount
necessary to complete the services. Any cost incurred in excess of the approved not-
to-exceed amount, without the express written consent of the SANITATION
DISTRICT's authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any notification
requirements contained in the CONSULTANT's invoice and monthly progress report.
Failure to notify the SANITATION DISTRICT that the services cannot be completed
within the authorized not-to-exceed amount of a Task Order is a material breach of
this AGREEMENT.
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B. Additional Work:
For extra work not a part of this AGREEMENT, written authorization from the SANITATION
DISTRICT is required prior to the CONSULTANT undertaking any extra work.
C. Method of Payment:
The CONSULTANT shall submit for approval by the SANITATION DISTRICT, monthly
invoices based on the total services which have been satisfactorily completed and
specifying a percentage of completion. The CONSULTANT's billings shall be certified for
payment by the SANITATION DISTRICT only after the SANITATION DISTRICT has
determined that the CONSULTANT has completed each applicable project task.
CONSULTANT shall submit separate invoices for each Task Order on a monthly basis.
CONSULTANT understands that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
D. Task Order Completion
Upon satisfactory completion of the work performed under each Task Order, and prior to
final payment under each Task Order for such work, or prior settlement upon termination
of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute
and deliver to the SANITATION DISTRICT a release of all claims against the
SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from the operation of
the release in stated amounts to be set forth therein.
E. False Claims
Pursuant to the California False Claims Act (Government Code Sections 12650-12655),
any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT
for compensation under the terms of this AGREEMENT may be held liable for treble
damages and up to a $10,000 civil penalty for each false claim submitted. This Section
shall also be binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim
when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be
presented to an officer or employee of the SANITATION DISTRICT a false claim or
request for payment or approval; (b) knowingly makes, uses, or causes to be made or
used a false record or statement to get a false claim paid or approved by the
SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting
a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses,
or causes to be made or used a false record or statement to conceal, avoid, or decrease
an obligation to the SANITATION DISTRICT; or (a) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of the false
claim.
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F. California Department of Industrial Relations (DIR) Registration and Record of Wages:
To the extent the CONSULTANT's employees and/or Subconsultants who will perform work
during the design and preconstruction phases of a construction contract for which
Prevailing Wage Determinations have been issued by the DIR and as more specifically
defined under Labor Code Section 1720 at seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor
Code Section 1771.4, the work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for
non-compliance with the requirements of Section1776 may be deducted from progress
payments per Section 1776.
Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish
a copy of all certified payroll records to the SANITATION DISTRICT and/or general public
upon request, provided the public request is made through the SANITATION DISTRICT,
the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of
the DIR.
The CONSULTANT and Subconsultants shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulations Section 16461(e).
G. Record of Expenses:
The CONSULTANT shall keep complete and accurate records of all costs and expenses
incidental to services covered by this AGREEMENT. These records will be made available
to the SANITATION DISTRICT upon request.
H. Reallocation of Total Compensation:
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve
a reallocation of the incremental amounts constituting the total compensation payable under
the Task Order, provided that the total compensation for the Task Order is not increased.
SECTIONS. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT
The CONSULTANT shall not contract with any other person or entity to perform the services
required without the written approval of the SANITATION DISTRICT. This AGREEMENT may
not be assigned voluntarily, or by operation of law, without the prior written approval of the
SANITATION DISTRICT. If the CONSULTANT is permitted to subcontract any part of this
AGREEMENT by the SANITATION DISTRICT, the CONSULTANT shall be responsible to the
SANITATION DISTRICT for the acts and omissions of its subcontractor, as it is for persons
directly employed. Nothing contained in this AGREEMENT shall create any contractual
relationship between any subcontractor and the SANITATION DISTRICT. All persons
engaged in the work will be considered employees of the CONSULTANT. The SANITATION
DISTRICT will deal directly with and will make all payments to the CONSULTANT.
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SECTION 6. CHANGES TO SCOPE OF WORK
In the event of a change in the Scope of Work as requested by the SANITATION DISTRICT,
the parties hereto shall execute an amendment to the Task Order, setting forth with
particularity, all new terms of the Task Order, including but not limited to, any additional
compensation.
SECTION 7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. All documents in all forms (electronic, paper, etc.), including, but not limited to, studies,
sketches, drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Professional Services, shall be the
property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of
these documents includes use of, reproduction or reuse of and all incidental rights,
whether or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or any partial
payment for work performed and includes ownership of any and all work product
completed prior to that payment. This Section shall apply whether the CONSULTANT's
Professional Services are terminated: a) by the completion of the AGREEMENT, or b) in
accordance with other provisions of this AGREEMENT. Notwithstanding any other
provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or
uses of the study or deliverable where the subsequent changes or uses are not
authorized or approved by CONSULTANT, provided that the service rendered by
CONSULTANT was not a proximate cause of the damage.
C. Copies of Work Product
Upon completion of the work required for each Task Order, the CONSULTANT shall
deliver to the SANITATION DISTRICT the number of copies specified in the specific Task
Order Scope of Work of the final report containing the CONSULTANT's findings,
conclusions, recommendations, and all supporting documentation and/or final design
drawings and specifications. Each Task Order will define the requirements for the
deliverables.
SECTION 8. INSURANCE
A. General:
i. Insurance shall be issued and underwritten by insurance companies acceptable to the
SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at
least Class VI11, or better, in accordance with the most current A.M. Best's Guide
Rating. However, the SANITATION DISTRICT will accept State Compensation
Insurance Fund, for the required policy of Worker's Compensation Insurance subject
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to the SANITATION DISTRICT's option to require a change in insurer in the event the
State Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose rating drops
below the levels herein specified. Said substitution shall occur within twenty (20)days
of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under this
AGREEMENT.
B. General Liability:
The CONSULTANT shall maintain during the life of this AGREEMENT, including the period
of warranty, Commercial General Liability Insurance written on an occurrence basis
providing the following minimum limits of liability coverage: One Million Dollars ($1,000,000)
per occurrence with One Million Dollars ($1,000,000) aggregate. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual
liability (for this AGREEMENT), products liability/completed operations (including any
product manufactured or assembled), broad form property damage, blanket contractual
liability, independent contractors liability, personal and advertising injury, mobile equipment,
owners and contractors protective liability, and cross liability and severability of interest
clauses. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable,
XCU coverage (Explosion, Collapse and Underground)and Riggers/On Hook Liability must
be included in the General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability:
The minimum limits of general liability and Automotive Liability Insurance required, as set
forth herein, shall be provided for through either a single policy of primary insurance or a
combination of policies of primary and umbrella excess coverage. Umbrella excess liability
coverage shall be issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and automotive liability.
D. Automotive Vehicle Liability Insurance:
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and
other vehicles providing the following minimum limits of liability coverage: Combined single
limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000)
per person for bodily injury and One Million Dollars ($1,000,000) per accident for property
damage. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement.
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E. Drone Liability Insurance:
If a drone will be used, drone liability insurance must be maintained by CONSULTANT in
the amount of One Million Dollars ($1,000,000) in a form acceptable by SANITATION
DISTRICT.
F. Worker's Compensation Insurance:
The CONSULTANT shall provide such Workers' Compensation Insurance as required by
the Labor Code of the State of California in the amount of the statutory limit, including
Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per
occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a
waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsements unless the insurance
carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement
numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage for Jones
Act claims.
G. Errors and Omissions/Professional Liability:
CONSULTANT shall maintain in full force and effect, throughout the term of this
AGREEMENT, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with
limits in accordance with the provisions of this Paragraph. If the policy of insurance is
written on a "claims made" basis, said policy shall be continued in full force and effect at all
times during the term of this AGREEMENT, and for a period of five (5)years from the date
of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT shall obtain
continuing insurance coverage for the prior acts or omissions of CONSULTANT during the
course of performing services under the term of this AGREEMENT. Said coverage shall be
evidenced by either a new policy evidencing no gap in coverage or by separate extended
"tail" coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence" basis, said policy
shall be continued in full force and effect during the term of this AGREEMENT or until
completion of the services provided for in this AGREEMENT, whichever is later. In the
event of termination of said policy during this period, new coverage shall be obtained for the
required period to insure for the prior ads of CONSULTANT during the course of
performing services under the term of this AGREEMENT.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a
form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention
amounts and the expiration date of said policy, and shall provide renewal certificates not
less than ten (10)days prior to the expiration of each policy term.
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H. Proof of Coverage:
The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and
amendatory endorsements effecting coverage. Said policies and endorsements shall
conform to the requirements herein stated. All certificates and endorsements are to be
received and approved by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, effecting the coverage required, at
any time. The following are approved forms that must be submitted as proof of coverage:
• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent
• Additional Insurance (ISO Form)CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT may
reject alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit Endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
I. Cancellation Notice:
Each insurance policy required herein shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty(30) days' prior written notice. The
Cancellation Section of ACORD Form 25 (5/2010)shall state the required thirty (30)days'
written notification. The policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced until thirty (30)days after written notice is given to the SANITATION
DISTRICT except for nonpayment of premium, which shall require not less than ten (10)
days written notice to the SANITATION DISTRICT. Should there be changes in coverage
or an increase in deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR amounts.
The certified letter must be sent to the attention of Risk Management, and shall be
received by the SANITATION DISTRICT not less than thirty(30) days prior to the
effective date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage
provided to the SANITATION DISTRICT.
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J. Primary Insurance:
All liability policies shall contain a Primary and Non Contributory Clause. Any other
insurance maintained by the SANITATION DISTRICT shall be excess and not
contributing with the insurance provided by CONSULTANT.
K. Separation of Insured:
All liability policies shall contain a "Separation of Insureds"clause.
L. Non-Limiting (if applicable):
Nothing in this document shall be construed as limiting in any way, nor shall it limit the
indemnification provision contained in this AGREEMENT, or the extent to which
CONSULTANT may be held responsible for payment of damages to persons or property.
M. Deductibles and Self-Insured Retentions:
Any deductible and/or self-insured retention must be declared to the SANITATION
DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions
require approval by the SANITATION DISTRICT. At the option of the SANITATION
DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured
retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a
financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
N. Defense Costs:
Liability policies shall have a provision that defense costs for all insureds and additional
insureds are paid in addition to and do not deplete any policy limits.
O. Subconsultants:
The CONSULTANT shall be responsible to establish insurance requirements for any
Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types
reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations
and work.
P. Limits Are Minimums:
If the CONSULTANT maintains higher limits than any minimums shown above, then
SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits
maintained by CONSULTANT.
SECTION 9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this Project under this AGREEMENT by
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CONSULTANT. CONSULTANT shall include a description of the work and services to be
done by each Subconsultant and each of CONSULTANT's Project team member.
CONSULTANT shall include the respective compensation amounts for CONSULTANT and
each Subconsultant, broken down as indicated in Section 4- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project team
members without prior written approval by the SANITATION DISTRICT.
SECTION 10. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered engineers
and a staff of specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this AGREEMENT,
requires the services of a registered engineer, such services hereunder will be performed
under the direct supervision of registered engineers who are registered in California.
SECTION 11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and
audit, any and all books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to discover and
verify that the CONSULTANT is in compliance with all requirements under this
AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that these rights
are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records,
documents and any other evidence of procedures and practices that the SANITATION
DISTRICT determines are necessary to discover and verify all direct and indirect costs, of
whatever nature, which are claimed to have been incurred, or anticipated to be incurred
or to ensure CONSULTANT's compliance with all requirements under this AGREEMENT
during the term of this AGREEMENT and for a period of three (3)years after its
termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION DISTRICT's policy.
The CONSULTANT shall make available to the SANITATION DISTRICT for review and
audit, all project related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT. Upon
SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of
originals of all requested records to the SANITATION DISTRICT. If an audit is
performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT
will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
SECTION 12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor and
nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants , agents or employees of the SANITATION DISTRICT and
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shall obtain no rights to any benefits which accrue to the SANITATION DISTRICT's
employees. CONSULTANT'S staff performing services under the AGREEMENT shall at all
times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to its
staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring,
review, and termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
SECTION 13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or
by depositing said notices in the U.S. mail, registered or certified mail, return receipt
requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Carla Dillon, Project Manager
Notice shall be mailed to CONSULTANT at:
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2121 Alton Parkway
Suite 100
Irvine, CA 92606
Attention: Tom Barnes
All communication regarding the Scope of Work, will be addressed to the Project Manager.
Direction from other SANITATION DISTRICT staff must be approved in writing by the
SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT.
SECTION 14. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause,
upon giving thirty(30)days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in accordance
with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in
Section 13- NOTICES.
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SECTION 15. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in compliance
with all federal, state and local directives and executive orders regarding non-discrimination
in employment; and that it agrees to demonstrate positively and aggressively the principle of
equal opportunity in employment.
The CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations
of federal, state and local government in all aspects related to this Agreement and any work
completed for the SANITATION DISTRICT.
SECTION 16. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
SECTION 17. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or interpretation
of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices
of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity
conducting alternate dispute resolution services.
SECTION 18. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this AGREEMENT, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
SECTION 19. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry and
professional standards. If, within the 12-month period following completion of its services,
the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to
meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION
DISTRICT, take all such actions as are necessary to correct or complete the noted
defciency(ies).
SECTION 20. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION
DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the
SANITATION DISTRICT and all of the SANITATION DISTRICTS officers, directors,
employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and
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against any and all claims, damages, liabilities, causes of action, suits, arbitration awards,
losses,judgments, fines, penalties, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs, and all other professional, expert or CONSULTANT's
fees and costs and the SANITATION DISTRICT's general and administrative expenses;
individually, a "Claim", collectively, "Claims")which may arise, pertain to, or relate directly or
indirectly to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers,
agents, employees, CONSULTANT's suppliers, CONSULTANT, Subconsultants,
subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of
any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the
foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the
Indemnified Parties from any Claim arising solely from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C) the independent action of a third party who is neither one of the Indemnified Parties nor
the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's
supplier, CONSULTANT, Subconsultant, subcontractor, nor anyone employed directly
or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more
than one cause if any such cause taken alone would otherwise result in the obligation to
indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of
any of the provisions of this AGREEMENT. Under no circumstances shall the insurance
requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT's
indemnification obligation or other liability hereunder. The terms of this AGREEMENT are
contractual and the result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code Section 1654)
that ambiguities are to be construed against the drafting party, shall not be employed in the
interpretation of this AGREEMENT.
SECTION 21. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the
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event a final judgment, arbitration, award, order, settlement, or other final resolution expressly
determines that the Claim did not arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the CONSULTANT, to any extent, then the
SANITATION DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such Claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier
termination of this AGREEMENT until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
SECTION 22. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, Attachment "L" as applicable, all of which
may be amended from time to time.
SECTION 23. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the State of California
and the Parties submit to jurisdiction in Orange County, in the event any action is brought in
connection with this Agreement or the performance thereof.
SECTION 24. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
SECTION 25. CONFLICT OF INTEREST
The CONSULTANT covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance
of the services contemplated by this AGREEMENT. No person having such interest shall be
employed by or associated with the CONSULTANT.
SECTION 26. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding and agreement between the parties
and supersedes all previous negotiations between them pertaining to the subject matter
thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT by its officers thereunto duly authorized, and by the CONSULTANT,
as of the day and year first above written.
CONSULTANT: ESA
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Gregory C. Sebourn, PLS Date
Chair, Board of Directors
By
Kelly Lore Date
Clerk of the Board
Marc Dubois Date
Contracts, Purchasing and Materials
Management Manager
Attachments: Attachment"A" Scope of Work
Attachment"B" Not Used
Attachment"C" Not Attached
Attachment"D" Allowable Direct Costs
Attachment"E" Not Used
Attachment"F" Not Attached
Attachment"G" Not Attached
Attachment"H" Not Used
Attachment"I" Not Used
Attachment"J" Not Attached
Attachment X' Hourly Labor Rate Schedule
Attachment"L"—OCSD Safety Standards
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PROFESSIONAL SERVICES AGREEMENT
This AGREEMENT is made and entered into, to be effective this July 26, 2017 by and
between:
ORANGE COUNTY SANITATION DISTRICT
hereinafter referred to as "SANITATION DISTRICT"
AND
AECOM TECHNICAL SERVICES, INC.
hereinafter referred to as "CONSULTANT"
RECITALS
WHEREAS, pursuant to a Request for Qualifications ("Underlying RFQ")the Board of
Directors of the SANITATION DISTRICT in accordance with Ordinance No. OCSD47, by action
on July 26, 2017 approved the award of a Professional Services Agreement("AGREEMENT")
for CONTRACT NO. CEQA PLAN2017-05, to CONSULTANT to provide services for selected
projects on a Task Order basis, from to ; and
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary CEQA and related services;
and,
WHEREAS, the parties intend by this AGREEMENT to set forth the general terms and
conditions that will apply to any specific project for which CONSULTANT is given a Task Order
by the SANITATION DISTRICT.
NOW, THEREFORE, the SANITATION DISTRICT and the CONSULTANT mutually
agree as follows:
SECTION 1. SCOPE OF AGREEMENT
The SANITATION DISTRICT, at its sole discretion, may, from time to time during the term of
this AGREEMENT, issue a Request for Task Order Proposal ("RFTOP")setting forth a
detailed Scope of Work, to be performed on the identified project, and thereafter, upon
receipt of a Proposal from the CONSULTANT, may issue a directive Task Order to proceed
with the work. The Underlying RFTOP, which includes the CONSULTANT's Proposal, and
the Task Order shall upon execution by the SANITATION DISTRICT, be attached hereto and
become an operative part of this AGREEMENT. Should any conflict or inconsistency exist in
the contract documents identified in this Section, the conflict or inconsistency shall be
resolved by applying the provisions in the highest priority document, which shall be
determined in the following order of priority:
(1 at)the terms of this AGREEMENT and any amendments thereto;
(2nd)the provisions of the RFTOP;
(3rd)the provisions of any written Task Orders, which may be issued from time to time.
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SECTION 2. TASK ORDER ISSUANCE BY SANITATION DISTRICT
The directive Task Order issued by the SANITATION DISTRICT, shall specifically, or by
reference to the RFTOP and corresponding Proposal, set forth the specific detailed terms of
this AGREEMENT that are to apply to the specific project for which the services will be
rendered. Those terms, shall include, but not be limited to, scope, time for performance and
compensation.
SECTION 3. TERM
This AGREEMENT shall commence on the effective date of this AGREEMENT, and
terminate on unless further extended by written agreement by the
SANITATION DISTRICT and CONSULTANT. Any work that is required by a Task Order and
is not finished by the date of termination shall be continued and completed by the
CONSULTANT, and the terms and conditions of this AGREEMENT shall continue in effect for
that time. The SANITATION DISTRICT has the option to renew this AGREEMENT twice,
each with a one year term, for a maximim contract duration of three (3)years total.
SECTION 4. COMPENSATION
The total compensation, payable to the CONSULTANT pursuant to this AGREEMENT, shall
not exceed four hundred thousand dollars ($400,000) per year in accordance with the term
described in Section 3 -TERM. The compensation includes, but is not limited to, fees for
professional services (based on individual burdened labor rates and Subconsultant fees),
overhead, and profit. The specific amount of compensation payable to the CONSULTANT for
services rendered on an individual project, pursuant to a directive Task Order, shall be
established for each Task Order and shall not exceed two hundred thousand dollars
($200,000) per individual Task Order unless authorized by the SANITATION DISTRICT's
Board of Directors. CONSULTANT agrees and acknowledges that the execution of this
AGREEMENT does not in any way guarantee that a Task Order will be issued to
CONSULTANT. Moreover, execution of this AGREEMENT shall not entitle CONSULTANT to
any form of payment or compensation from the SANITATION DISTRICT without the
SANITATION DISTRICT first having issued a written Task Order.
A. Task Order Pricing
The subsections below describe the cost elements to be used in developing the price of
the written Task Orders.
1) Hourly Labor Rate Schedule
The services by the CONSULTANT, pursuant to each project Task Order, shall be billed
to the SANITATION DISTRICT at the hourly rate ranges for each class of employee to
be used, set forth in an Attachment"K"— Hourly Labor Rate Schedule, to be provided
by the SANITATION DISTRICT prior to award of Agreement and incorporated herein.
Hourly Labor Rates shall consist of the:
Burdened Salary Rate consisting of the hourly salary rate, plus benefits for each
employee or labor category specified in Attachment"K" paid by CONSULTANT and
its Subconsultants to their employees.
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Direct Salary rates for CONSULTANT and its Subconsultants may be adjusted
annually on by mutual agreement of the Parties. Escalation of the salary
rate will be in accordance with CPI of LA-Orange County Index. This rate is
determined by the U.S. Department of Labor Statistics, Consumer Price Index— Los
Angeles/Orange County Metropolitan Area.
Burden rates for CONSULTANT and its Subconsultants shall remain fixed through the
term of this AGREEMENT, inclusive of renewals identified in Section 3 -TERM.
Overhead Rate consisting of a verified or negotiated percentage specified in
Attachment"K" and applied to the Burdened Salary Rate for CONSULTANT and its
Subconsultants. The Overhead Rates of CONSULTANT and its Subconsultants shall
remain fixed through the term of this AGREEMENT inclusive of any renewals
identified in Section 3-TERM.
Profit, expressed as a percentage, shall be applied to each Burdened Salary Rate
and applied Overhead Rate. Profit shall be included in the Hourly Labor Rates
specified in Attachment W'. Profit shall remain fixed through the term of this
AGREEMENT, inclusive of any renewals identified in Section 3-TERM.
2) Direct Costs
The SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants the
actual costs of permits and associated fees, travel, licenses, and other services in
accordance with Attachment "D"—Allowable Direct Costs, as may be specified in
each Task Order proposal. The SANITATION DISTRICT shall not pay markup on
such Direct Costs, Equipment rentals, leases, purchases and other direct costs not
agreed to and specified in the Task Order proposal may only be reimbursed by the
SANITATION DISTRICT with its prior written approval.
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel
and business expenses as described in this Section and further described in
Attachment"D"—Allowable Direct Costs to this AGREEMENT. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as considered
by the Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by the
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
htto://www.gsa.goy/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical means
of management of reimbursable costs. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem".
CONSULTANT shall return to the SANITATION DISTRICT any excess
reimbursements.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in writing,
at least fifteen (15)days in advance.
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Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles, Ventura,
San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize a personal vehicle for
local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed at
the discretion of the SANITATION DISTRICT based on reasonableness of meeting
schedules and the amount of time required for travel by the CONSULTANT. Such
determination will be made on a case-by-case basis and at the discretion of the
SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by the IRS shall be utilized for travel meal
reimbursements. Per diem rates shall be applied to meals that are appropriate for
travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"—Allowable Direct Costs of this AGREEMENT.
All incidental expenses shall be included in the Overhead Rate pursuant to
Subsection A.1) Hourly Labor Rate Schedule above.
Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts
and other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D"—Allowable Direct Costs.
3) Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications
in scope of work resulting from Feld investigations and field work required by
Contract. These items may include special equipment, test equipment and tooling
and other materials and services not previously identified. Refer to Attachment"D"—
Allowable Direct Costs for payment information.
4) Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Task Order Proposal will exceed seventy-five percent
(75%) of the not-to-exceed amount of the Task Order, including any approved
additional compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional amount
necessary to complete the services. Any cost incurred in excess of the approved not-
to-exceed amount, without the express written consent of the SANITATION
DISTRICT's authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any notification
requirements contained in the CONSULTANT's invoice and monthly progress report.
Failure to notify the SANITATION DISTRICT that the services cannot be completed
within the authorized not-to-exceed amount of a Task Order is a material breach of
this AGREEMENT.
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B. Additional Work:
For extra work not a part of this AGREEMENT, written authorization from the SANITATION
DISTRICT is required prior to the CONSULTANT undertaking any extra work.
C. Method of Payment:
The CONSULTANT shall submit for approval by the SANITATION DISTRICT, monthly
invoices based on the total services which have been satisfactorily completed and
specifying a percentage of completion. The CONSULTANT's billings shall be certified for
payment by the SANITATION DISTRICT only after the SANITATION DISTRICT has
determined that the CONSULTANT has completed each applicable project task.
CONSULTANT shall submit separate invoices for each Task Order on a monthly basis.
CONSULTANT understands that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
D. Task Order Completion
Upon satisfactory completion of the work performed under each Task Order, and prior to
final payment under each Task Order for such work, or prior settlement upon termination
of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute
and deliver to the SANITATION DISTRICT a release of all claims against the
SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from the operation of
the release in stated amounts to be set forth therein.
E. False Claims
Pursuant to the California False Claims Act (Government Code Sections 12650-12655),
any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT
for compensation under the terms of this AGREEMENT may be held liable for treble
damages and up to a $10,000 civil penalty for each false claim submitted. This Section
shall also be binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim
when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be
presented to an officer or employee of the SANITATION DISTRICT a false claim or
request for payment or approval; (b) knowingly makes, uses, or causes to be made or
used a false record or statement to get a false claim paid or approved by the
SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting
a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses,
or causes to be made or used a false record or statement to conceal, avoid, or decrease
an obligation to the SANITATION DISTRICT; or (a) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of the false
claim.
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F. California Department of Industrial Relations (DIR) Registration and Record of Wages:
To the extent the CONSULTANT's employees and/or Subconsultants who will perform work
during the design and preconstruction phases of a construction contract for which
Prevailing Wage Determinations have been issued by the DIR and as more specifically
defined under Labor Code Section 1720 at seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor
Code Section 1771.4, the work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for
non-compliance with the requirements of Section1776 may be deducted from progress
payments per Section 1776.
Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish
a copy of all certified payroll records to the SANITATION DISTRICT and/or general public
upon request, provided the public request is made through the SANITATION DISTRICT,
the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of
the DIR.
The CONSULTANT and Subconsultants shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulations Section 16461(e).
G. Record of Expenses:
The CONSULTANT shall keep complete and accurate records of all costs and expenses
incidental to services covered by this AGREEMENT. These records will be made available
to the SANITATION DISTRICT upon request.
H. Reallocation of Total Compensation:
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve
a reallocation of the incremental amounts constituting the total compensation payable under
the Task Order, provided that the total compensation for the Task Order is not increased.
SECTIONS. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT
The CONSULTANT shall not contract with any other person or entity to perform the services
required without the written approval of the SANITATION DISTRICT. This AGREEMENT may
not be assigned voluntarily, or by operation of law, without the prior written approval of the
SANITATION DISTRICT. If the CONSULTANT is permitted to subcontract any part of this
AGREEMENT by the SANITATION DISTRICT, the CONSULTANT shall be responsible to the
SANITATION DISTRICT for the acts and omissions of its subcontractor, as it is for persons
directly employed. Nothing contained in this AGREEMENT shall create any contractual
relationship between any subcontractor and the SANITATION DISTRICT. All persons
engaged in the work will be considered employees of the CONSULTANT. The SANITATION
DISTRICT will deal directly with and will make all payments to the CONSULTANT.
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SECTION 6. CHANGES TO SCOPE OF WORK
In the event of a change in the Scope of Work as requested by the SANITATION DISTRICT,
the parties hereto shall execute an amendment to the Task Order, setting forth with
particularity, all new terms of the Task Order, including but not limited to, any additional
compensation.
SECTION 7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. All documents in all forms (electronic, paper, etc.), including, but not limited to, studies,
sketches, drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Professional Services, shall be the
property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of
these documents includes use of, reproduction or reuse of and all incidental rights,
whether or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or any partial
payment for work performed and includes ownership of any and all work product
completed prior to that payment. This Section shall apply whether the CONSULTANT's
Professional Services are terminated: a) by the completion of the AGREEMENT, or b) in
accordance with other provisions of this AGREEMENT. Notwithstanding any other
provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or
uses of the study or deliverable where the subsequent changes or uses are not
authorized or approved by CONSULTANT, provided that the service rendered by
CONSULTANT was not a proximate cause of the damage.
C. Copies of Work Product
Upon completion of the work required for each Task Order, the CONSULTANT shall
deliver to the SANITATION DISTRICT the number of copies specified in the specific Task
Order Scope of Work of the final report containing the CONSULTANT's findings,
conclusions, recommendations, and all supporting documentation and/or final design
drawings and specifications. Each Task Order will define the requirements for the
deliverables.
SECTION 8. INSURANCE
A. General:
i. Insurance shall be issued and underwritten by insurance companies acceptable to the
SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at
least Class VI11, or better, in accordance with the most current A.M. Best's Guide
Rating. However, the SANITATION DISTRICT will accept State Compensation
Insurance Fund, for the required policy of Worker's Compensation Insurance subject
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to the SANITATION DISTRICT's option to require a change in insurer in the event the
State Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose rating drops
below the levels herein specified. Said substitution shall occur within twenty (20)days
of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under this
AGREEMENT.
B. General Liability:
The CONSULTANT shall maintain during the life of this AGREEMENT, including the period
of warranty, Commercial General Liability Insurance written on an occurrence basis
providing the following minimum limits of liability coverage: One Million Dollars ($1,000,000)
per occurrence with One Million Dollars ($1,000,000) aggregate. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual
liability (for this AGREEMENT), products liability/completed operations (including any
product manufactured or assembled), broad form property damage, blanket contractual
liability, independent contractors liability, personal and advertising injury, mobile equipment,
owners and contractors protective liability, and cross liability and severability of interest
clauses. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable,
XCU coverage (Explosion, Collapse and Underground)and Riggers/On Hook Liability must
be included in the General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability:
The minimum limits of general liability and Automotive Liability Insurance required, as set
forth herein, shall be provided for through either a single policy of primary insurance or a
combination of policies of primary and umbrella excess coverage. Umbrella excess liability
coverage shall be issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and automotive liability.
D. Automotive Vehicle Liability Insurance:
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and
other vehicles providing the following minimum limits of liability coverage: Combined single
limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000)
per person for bodily injury and One Million Dollars ($1,000,000) per accident for property
damage. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement.
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E. Drone Liability Insurance:
If a drone will be used, drone liability insurance must be maintained by CONSULTANT in
the amount of One Million Dollars ($1,000,000) in a form acceptable by SANITATION
DISTRICT.
F. Worker's Compensation Insurance:
The CONSULTANT shall provide such Workers' Compensation Insurance as required by
the Labor Code of the State of California in the amount of the statutory limit, including
Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per
occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a
waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsements unless the insurance
carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement
numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage for Jones
Act claims.
G. Errors and Omissions/Professional Liability:
CONSULTANT shall maintain in full force and effect, throughout the term of this
AGREEMENT, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with
limits in accordance with the provisions of this Paragraph. If the policy of insurance is
written on a "claims made" basis, said policy shall be continued in full force and effect at all
times during the term of this AGREEMENT, and for a period of five (5)years from the date
of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT shall obtain
continuing insurance coverage for the prior acts or omissions of CONSULTANT during the
course of performing services under the term of this AGREEMENT. Said coverage shall be
evidenced by either a new policy evidencing no gap in coverage or by separate extended
"tail" coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence" basis, said policy
shall be continued in full force and effect during the term of this AGREEMENT or until
completion of the services provided for in this AGREEMENT, whichever is later. In the
event of termination of said policy during this period, new coverage shall be obtained for the
required period to insure for the prior ads of CONSULTANT during the course of
performing services under the term of this AGREEMENT.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a
form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention
amounts and the expiration date of said policy, and shall provide renewal certificates not
less than ten (10)days prior to the expiration of each policy term.
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H. Proof of Coverage:
The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and
amendatory endorsements effecting coverage. Said policies and endorsements shall
conform to the requirements herein stated. All certificates and endorsements are to be
received and approved by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, effecting the coverage required, at
any time. The following are approved forms that must be submitted as proof of coverage:
• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent
• Additional Insurance (ISO Form)CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT may
reject alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit Endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
I. Cancellation Notice:
Each insurance policy required herein shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty(30) days' prior written notice. The
Cancellation Section of ACORD Form 25 (5/2010)shall state the required thirty (30)days'
written notification. The policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced until thirty (30)days after written notice is given to the SANITATION
DISTRICT except for nonpayment of premium, which shall require not less than ten (10)
days written notice to the SANITATION DISTRICT. Should there be changes in coverage
or an increase in deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR amounts.
The certified letter must be sent to the attention of Risk Management, and shall be
received by the SANITATION DISTRICT not less than thirty(30) days prior to the
effective date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage
provided to the SANITATION DISTRICT.
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J. Primary Insurance:
All liability policies shall contain a Primary and Non Contributory Clause. Any other
insurance maintained by the SANITATION DISTRICT shall be excess and not
contributing with the insurance provided by CONSULTANT.
K. Separation of Insured:
All liability policies shall contain a "Separation of Insureds"clause.
L. Non-Limiting (if applicable):
Nothing in this document shall be construed as limiting in any way, nor shall it limit the
indemnification provision contained in this AGREEMENT, or the extent to which
CONSULTANT may be held responsible for payment of damages to persons or property.
M. Deductibles and Self-Insured Retentions:
Any deductible and/or self-insured retention must be declared to the SANITATION
DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions
require approval by the SANITATION DISTRICT. At the option of the SANITATION
DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured
retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a
financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
N. Defense Costs:
Liability policies shall have a provision that defense costs for all insureds and additional
insureds are paid in addition to and do not deplete any policy limits.
O. Subconsultants:
The CONSULTANT shall be responsible to establish insurance requirements for any
Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types
reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations
and work.
P. Limits Are Minimums:
If the CONSULTANT maintains higher limits than any minimums shown above, then
SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits
maintained by CONSULTANT.
SECTION 9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this Project under this AGREEMENT by
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CONSULTANT. CONSULTANT shall include a description of the work and services to be
done by each Subconsultant and each of CONSULTANT's Project team member.
CONSULTANT shall include the respective compensation amounts for CONSULTANT and
each Subconsultant, broken down as indicated in Section 4- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project team
members without prior written approval by the SANITATION DISTRICT.
SECTION 10. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered engineers
and a staff of specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this AGREEMENT,
requires the services of a registered engineer, such services hereunder will be performed
under the direct supervision of registered engineers who are registered in California.
SECTION 11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and
audit, any and all books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to discover and
verify that the CONSULTANT is in compliance with all requirements under this
AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that these rights
are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records,
documents and any other evidence of procedures and practices that the SANITATION
DISTRICT determines are necessary to discover and verify all direct and indirect costs, of
whatever nature, which are claimed to have been incurred, or anticipated to be incurred
or to ensure CONSULTANT's compliance with all requirements under this AGREEMENT
during the term of this AGREEMENT and for a period of three (3)years after its
termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION DISTRICT's policy.
The CONSULTANT shall make available to the SANITATION DISTRICT for review and
audit, all project related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT. Upon
SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of
originals of all requested records to the SANITATION DISTRICT. If an audit is
performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT
will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
SECTION 12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor and
nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants , agents or employees of the SANITATION DISTRICT and
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shall obtain no rights to any benefits which accrue to the SANITATION DISTRICT's
employees. CONSULTANT'S staff performing services under the AGREEMENT shall at all
times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to its
staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring,
review, and termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
SECTION 13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or
by depositing said notices in the U.S. mail, registered or certified mail, return receipt
requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Carla Dillon, Project Manager
Notice shall be mailed to CONSULTANT at:
AECOM TECHNICAL SERVICES, INC.
999 Town and Country Road
Orange, CA 92868
Attention: Jennifer Ziv
All communication regarding the Scope of Work, will be addressed to the Project Manager.
Direction from other SANITATION DISTRICT staff must be approved in writing by the
SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT.
SECTION 14. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause,
upon giving thirty(30)days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in accordance
with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in
Section 13- NOTICES.
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SECTION 15. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in compliance
with all federal, state and local directives and executive orders regarding non-discrimination
in employment; and that it agrees to demonstrate positively and aggressively the principle of
equal opportunity in employment.
The CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations
of federal, state and local government in all aspects related to this Agreement and any work
completed for the SANITATION DISTRICT.
SECTION 16. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
SECTION 17. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or interpretation
of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices
of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity
conducting alternate dispute resolution services.
SECTION 18. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Alternative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this AGREEMENT, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
SECTION 19. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry and
professional standards. If, within the 12-month period following completion of its services,
the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to
meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION
DISTRICT, take all such actions as are necessary to correct or complete the noted
defciency(ies).
SECTION 20. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION
DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the
SANITATION DISTRICT and all of the SANITATION DISTRICTS officers, directors,
employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and
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against any and all claims, damages, liabilities, causes of action, suits, arbitration awards,
losses,judgments, fines, penalties, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs, and all other professional, expert or CONSULTANT's
fees and costs and the SANITATION DISTRICT's general and administrative expenses;
individually, a "Claim", collectively, "Claims")which may arise, pertain to, or relate directly or
indirectly to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers,
agents, employees, CONSULTANT's suppliers, CONSULTANT, Subconsultants,
subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of
any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the
foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the
Indemnified Parties from any Claim arising solely from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C) the independent action of a third party who is neither one of the Indemnified Parties nor
the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's
supplier, CONSULTANT, Subconsultant, subcontractor, nor anyone employed directly
or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more
than one cause if any such cause taken alone would otherwise result in the obligation to
indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of
any of the provisions of this AGREEMENT. Under no circumstances shall the insurance
requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT's
indemnification obligation or other liability hereunder. The terms of this AGREEMENT are
contractual and the result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code Section 1654)
that ambiguities are to be construed against the drafting party, shall not be employed in the
interpretation of this AGREEMENT.
SECTION 21. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the
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event a final judgment, arbitration, award, order, settlement, or other final resolution expressly
determines that the Claim did not arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the CONSULTANT, to any extent, then the
SANITATION DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such Claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier
termination of this AGREEMENT until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
SECTION 22. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, Attachment "L" as applicable, all of which
may be amended from time to time.
SECTION 23. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the State of California
and the Parties submit to jurisdiction in Orange County, in the event any action is brought in
connection with this Agreement or the performance thereof.
SECTION 24. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
SECTION 25. CONFLICT OF INTEREST
The CONSULTANT covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance
of the services contemplated by this AGREEMENT. No person having such interest shall be
employed by or associated with the CONSULTANT.
SECTION 26. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding and agreement between the parties
and supersedes all previous negotiations between them pertaining to the subject matter
thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT by its officers thereunto duly authorized, and by the CONSULTANT,
as of the day and year first above written.
CONSULTANT: AECOM TECHNICAL SERVICES, INC.
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Gregory C. Sebourn, PLS Date
Chair, Board of Directors
By
Kelly Lore Date
Clerk of the Board
Marc Dubois Date
Contracts, Purchasing and Materials
Management Manager
Attachments: Attachment"A" Scope of Work
Attachment"B" Not Used
Attachment"C" Not Attached
Attachment"D" Allowable Direct Costs
Attachment"E" Not Used
Attachment"F" Not Attached
Attachment"G" Not Attached
Attachment"H" Not Used
Attachment"I" Not Used
Attachment"J" Not Attached
Attachment X' Hourly Labor Rate Schedule
Attachment"L"—OCSD Safety Standards
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PROFESSIONAL SERVICES AGREEMENT
This AGREEMENT is made and entered into, to be effective this July 26, 2017 by and
between:
ORANGE COUNTY SANITATION DISTRICT
hereinafter referred to as "SANITATION DISTRICT"
AND
LSA ASSOCIATES, INC.
hereinafter referred to as "CONSULTANT"
RECITALS
WHEREAS, pursuant to a Request for Qualifications ("Underlying RFQ")the Board of
Directors of the SANITATION DISTRICT in accordance with Ordinance No. OCSD47, by action
on July 26, 2017 approved the award of a Professional Services Agreement("AGREEMENT")
for CONTRACT NO. CEQA PLAN2017-06, to CONSULTANT to provide services for selected
projects on a Task Order basis, from to ; and
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary CEQA and related services;
and,
WHEREAS, the parties intend by this AGREEMENT to set forth the general terms and
conditions that will apply to any specific project for which CONSULTANT is given a Task Order
by the SANITATION DISTRICT.
NOW, THEREFORE, the SANITATION DISTRICT and the CONSULTANT mutually
agree as follows:
SECTION 1. SCOPE OF AGREEMENT
The SANITATION DISTRICT, at its sole discretion, may, from time to time during the term of
this AGREEMENT, issue a Request for Task Order Proposal ("RFTOP")setting forth a
detailed Scope of Work, to be performed on the identified project, and thereafter, upon
receipt of a Proposal from the CONSULTANT, may issue a directive Task Order to proceed
with the work. The Underlying RFTOP, which includes the CONSULTANT's Proposal, and
the Task Order shall upon execution by the SANITATION DISTRICT, be attached hereto and
become an operative part of this AGREEMENT. Should any conflict or inconsistency exist in
the contract documents identified in this Section, the conflict or inconsistency shall be
resolved by applying the provisions in the highest priority document, which shall be
determined in the following order of priority:
(1 at)the terms of this AGREEMENT and any amendments thereto;
(2nd)the provisions of the RFTOP;
(3rd)the provisions of any written Task Orders, which may be issued from time to time.
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SECTION 2. TASK ORDER ISSUANCE BY SANITATION DISTRICT
The directive Task Order issued by the SANITATION DISTRICT, shall specifically, or by
reference to the RFTOP and corresponding Proposal, set forth the specific detailed terms of
this AGREEMENT that are to apply to the specific project for which the services will be
rendered. Those terms, shall include, but not be limited to, scope, time for performance and
compensation.
SECTION 3. TERM
This AGREEMENT shall commence on the effective date of this AGREEMENT, and
terminate on unless further extended by written agreement by the
SANITATION DISTRICT and CONSULTANT. Any work that is required by a Task Order and
is not finished by the date of termination shall be continued and completed by the
CONSULTANT, and the terms and conditions of this AGREEMENT shall continue in effect for
that time. The SANITATION DISTRICT has the option to renew this AGREEMENT twice,
each with a one year term, for a maximim contract duration of three (3)years total.
SECTION 4. COMPENSATION
The total compensation, payable to the CONSULTANT pursuant to this AGREEMENT, shall
not exceed four hundred thousand dollars ($400,000) per year in accordance with the term
described in Section 3 -TERM. The compensation includes, but is not limited to, fees for
professional services (based on individual burdened labor rates and Subconsultant fees),
overhead, and profit. The specific amount of compensation payable to the CONSULTANT for
services rendered on an individual project, pursuant to a directive Task Order, shall be
established for each Task Order and shall not exceed two hundred thousand dollars
($200,000) per individual Task Order unless authorized by the SANITATION DISTRICT's
Board of Directors. CONSULTANT agrees and acknowledges that the execution of this
AGREEMENT does not in any way guarantee that a Task Order will be issued to
CONSULTANT. Moreover, execution of this AGREEMENT shall not entitle CONSULTANT to
any form of payment or compensation from the SANITATION DISTRICT without the
SANITATION DISTRICT first having issued a written Task Order.
A. Task Order Pricing
The subsections below describe the cost elements to be used in developing the price of
the written Task Orders.
1) Hourly Labor Rate Schedule
The services by the CONSULTANT, pursuant to each project Task Order, shall be billed
to the SANITATION DISTRICT at the hourly rate ranges for each class of employee to
be used, set forth in an Attachment"K"— Hourly Labor Rate Schedule, to be provided
by the SANITATION DISTRICT prior to award of Agreement and incorporated herein.
Hourly Labor Rates shall consist of the:
Burdened Salary Rate consisting of the hourly salary rate, plus benefits for each
employee or labor category specified in Attachment"K" paid by CONSULTANT and
its Subconsultants to their employees.
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Direct Salary rates for CONSULTANT and its Subconsultants may be adjusted
annually on by mutual agreement of the Parties. Escalation of the salary
rate will be in accordance with CPI of LA-Orange County Index. This rate is
determined by the U.S. Department of Labor Statistics, Consumer Price Index— Los
Angeles/Orange County Metropolitan Area.
Burden rates for CONSULTANT and its Subconsultants shall remain fixed through the
term of this AGREEMENT, inclusive of renewals identified in Section 3 -TERM.
Overhead Rate consisting of a verified or negotiated percentage specified in
Attachment"K" and applied to the Burdened Salary Rate for CONSULTANT and its
Subconsultants. The Overhead Rates of CONSULTANT and its Subconsultants shall
remain fixed through the term of this AGREEMENT inclusive of any renewals
identified in Section 3-TERM.
Profit, expressed as a percentage, shall be applied to each Burdened Salary Rate
and applied Overhead Rate. Profit shall be included in the Hourly Labor Rates
specified in Attachment W'. Profit shall remain fixed through the term of this
AGREEMENT, inclusive of any renewals identified in Section 3-TERM.
2) Direct Costs
The SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants the
actual costs of permits and associated fees, travel, licenses, and other services in
accordance with Attachment "D"—Allowable Direct Costs, as may be specified in
each Task Order proposal. The SANITATION DISTRICT shall not pay markup on
such Direct Costs, Equipment rentals, leases, purchases and other direct costs not
agreed to and specified in the Task Order proposal may only be reimbursed by the
SANITATION DISTRICT with its prior written approval.
The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel
and business expenses as described in this Section and further described in
Attachment"D"—Allowable Direct Costs to this AGREEMENT. The reimbursement of
the above mentioned expenses will be based on an "accountable plan" as considered
by the Internal Revenue Service (IRS). The plan includes a combination of
reimbursements based upon receipts and a "per diem" component approved by the
IRS. The most recent schedule of the per diem rates utilized by the SANITATION
DISTRICT can be found on the U.S. General Service Administration website at
htto://www.gsa.goy/portal/category/104711#.
The CONSULTANT shall be responsible for the most economical and practical means
of management of reimbursable costs. The SANITATION DISTRICT shall apply the
most economic and practical method of reimbursement which may include
reimbursements based upon receipts and/or"per diem".
CONSULTANT shall return to the SANITATION DISTRICT any excess
reimbursements.
Travel and travel arrangements—Any travel involving airfare, overnight stays or
multiple day attendance must be approved by the SANITATION DISTRICT in writing,
at least fifteen (15)days in advance.
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Local Travel is considered travel by the CONSULTANT within the SANITATION
DISTRICT general geographical area which includes Orange, Los Angeles, Ventura,
San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile
mileage is reimbursable if CONSULTANT is required to utilize a personal vehicle for
local travel.
Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for
local travel. However, under certain circumstances overnight stay may be allowed at
the discretion of the SANITATION DISTRICT based on reasonableness of meeting
schedules and the amount of time required for travel by the CONSULTANT. Such
determination will be made on a case-by-case basis and at the discretion of the
SANITATION DISTRICT.
Travel Meals— Per-diem rates as approved by the IRS shall be utilized for travel meal
reimbursements. Per diem rates shall be applied to meals that are appropriate for
travel times. Receipts are not required for the approved meals.
Additional details related to the reimbursement of the allowable direct costs are
provided in the Attachment"D"—Allowable Direct Costs of this AGREEMENT.
All incidental expenses shall be included in the Overhead Rate pursuant to
Subsection A.1) Hourly Labor Rate Schedule above.
Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts
and other documentary records to support CONSULTANT's request for
reimbursement of these amounts, see Attachment"D"—Allowable Direct Costs.
3) Other Direct Costs
Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications
in scope of work resulting from Feld investigations and field work required by
Contract. These items may include special equipment, test equipment and tooling
and other materials and services not previously identified. Refer to Attachment"D"—
Allowable Direct Costs for payment information.
4) Limitation of Costs
If, at any time, CONSULTANT estimates the cost of performing the services
described in CONSULTANT's Task Order Proposal will exceed seventy-five percent
(75%) of the not-to-exceed amount of the Task Order, including any approved
additional compensation, CONSULTANT shall notify the SANITATION DISTRICT
immediately, and in writing. This written notice shall indicate the additional amount
necessary to complete the services. Any cost incurred in excess of the approved not-
to-exceed amount, without the express written consent of the SANITATION
DISTRICT's authorized representative shall be at CONSULTANT's own risk. This
written notice shall be provided separately from, and in addition to any notification
requirements contained in the CONSULTANT's invoice and monthly progress report.
Failure to notify the SANITATION DISTRICT that the services cannot be completed
within the authorized not-to-exceed amount of a Task Order is a material breach of
this AGREEMENT.
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B. Additional Work:
For extra work not a part of this AGREEMENT, written authorization from the SANITATION
DISTRICT is required prior to the CONSULTANT undertaking any extra work.
C. Method of Payment:
The CONSULTANT shall submit for approval by the SANITATION DISTRICT, monthly
invoices based on the total services which have been satisfactorily completed and
specifying a percentage of completion. The CONSULTANT's billings shall be certified for
payment by the SANITATION DISTRICT only after the SANITATION DISTRICT has
determined that the CONSULTANT has completed each applicable project task.
CONSULTANT shall submit separate invoices for each Task Order on a monthly basis.
CONSULTANT understands that submitted costs are subject to Section 11 -AUDIT
PROVISIONS.
D. Task Order Completion
Upon satisfactory completion of the work performed under each Task Order, and prior to
final payment under each Task Order for such work, or prior settlement upon termination
of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute
and deliver to the SANITATION DISTRICT a release of all claims against the
SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such
claims, if any, as may be specifically exempted by CONSULTANT from the operation of
the release in stated amounts to be set forth therein.
E. False Claims
Pursuant to the California False Claims Act (Government Code Sections 12650-12655),
any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT
for compensation under the terms of this AGREEMENT may be held liable for treble
damages and up to a $10,000 civil penalty for each false claim submitted. This Section
shall also be binding on all Subconsultants.
A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim
when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be
presented to an officer or employee of the SANITATION DISTRICT a false claim or
request for payment or approval; (b) knowingly makes, uses, or causes to be made or
used a false record or statement to get a false claim paid or approved by the
SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting
a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses,
or causes to be made or used a false record or statement to conceal, avoid, or decrease
an obligation to the SANITATION DISTRICT; or (a) is a beneficiary of an inadvertent
submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false
claim to the SANITATION DISTRICT within a reasonable time after discovery of the false
claim.
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F. California Department of Industrial Relations (DIR) Registration and Record of Wages:
To the extent the CONSULTANT's employees and/or Subconsultants who will perform work
during the design and preconstruction phases of a construction contract for which
Prevailing Wage Determinations have been issued by the DIR and as more specifically
defined under Labor Code Section 1720 at seq, CONSULTANT and Subconsultants shall
comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor
Code Section 1771.4, the work is subject to compliance monitoring and enforcement by the
DIR.
The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall
comply with all the provisions of Labor Code Section 1776, and shall submit payroll records
to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for
non-compliance with the requirements of Section1776 may be deducted from progress
payments per Section 1776.
Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish
a copy of all certified payroll records to the SANITATION DISTRICT and/or general public
upon request, provided the public request is made through the SANITATION DISTRICT,
the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement of
the DIR.
The CONSULTANT and Subconsultants shall comply with the job site notices posting
requirements established by the Labor Commissioner per Title 8, California Code of
Regulations Section 16461(e).
G. Record of Expenses:
The CONSULTANT shall keep complete and accurate records of all costs and expenses
incidental to services covered by this AGREEMENT. These records will be made available
to the SANITATION DISTRICT upon request.
H. Reallocation of Total Compensation:
The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve
a reallocation of the incremental amounts constituting the total compensation payable under
the Task Order, provided that the total compensation for the Task Order is not increased.
SECTIONS. LIMITATIONS UPON SUBCONTRACTING AND ASSIGNMENT
The CONSULTANT shall not contract with any other person or entity to perform the services
required without the written approval of the SANITATION DISTRICT. This AGREEMENT may
not be assigned voluntarily, or by operation of law, without the prior written approval of the
SANITATION DISTRICT. If the CONSULTANT is permitted to subcontract any part of this
AGREEMENT by the SANITATION DISTRICT, the CONSULTANT shall be responsible to the
SANITATION DISTRICT for the acts and omissions of its subcontractor, as it is for persons
directly employed. Nothing contained in this AGREEMENT shall create any contractual
relationship between any subcontractor and the SANITATION DISTRICT. All persons
engaged in the work will be considered employees of the CONSULTANT. The SANITATION
DISTRICT will deal directly with and will make all payments to the CONSULTANT.
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SECTION 6. CHANGES TO SCOPE OF WORK
In the event of a change in the Scope of Work as requested by the SANITATION DISTRICT,
the parties hereto shall execute an amendment to the Task Order, setting forth with
particularity, all new terms of the Task Order, including but not limited to, any additional
compensation.
SECTION 7. DOCUMENT OWNERSHIP—CONSULTANT PERFORMANCE
A. All documents in all forms (electronic, paper, etc.), including, but not limited to, studies,
sketches, drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Professional Services, shall be the
property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of
these documents includes use of, reproduction or reuse of and all incidental rights,
whether or not the work for which they were prepared has been performed. The
SANITATION DISTRICT ownership entitlement arises upon payment or any partial
payment for work performed and includes ownership of any and all work product
completed prior to that payment. This Section shall apply whether the CONSULTANT's
Professional Services are terminated: a) by the completion of the AGREEMENT, or b) in
accordance with other provisions of this AGREEMENT. Notwithstanding any other
provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to
make copies of all such plans, studies, sketches, drawings, computer printouts and disk
files, and specifications.
B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or
uses of the study or deliverable where the subsequent changes or uses are not
authorized or approved by CONSULTANT, provided that the service rendered by
CONSULTANT was not a proximate cause of the damage.
C. Copies of Work Product
Upon completion of the work required for each Task Order, the CONSULTANT shall
deliver to the SANITATION DISTRICT the number of copies specified in the specific Task
Order Scope of Work of the final report containing the CONSULTANT's findings,
conclusions, recommendations, and all supporting documentation and/or final design
drawings and specifications. Each Task Order will define the requirements for the
deliverables.
SECTION 8. INSURANCE
A. General:
i. Insurance shall be issued and underwritten by insurance companies acceptable to the
SANITATION DISTRICT.
ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at
least Class VI11, or better, in accordance with the most current A.M. Best's Guide
Rating. However, the SANITATION DISTRICT will accept State Compensation
Insurance Fund, for the required policy of Worker's Compensation Insurance subject
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to the SANITATION DISTRICT's option to require a change in insurer in the event the
State Fund financial rating is decreased below"B". Further, the SANITATION
DISTRICT will require CONSULTANT to substitute any insurer whose rating drops
below the levels herein specified. Said substitution shall occur within twenty (20)days
of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent.
iii. Coverage shall be in effect prior to the commencement of any work under this
AGREEMENT.
B. General Liability:
The CONSULTANT shall maintain during the life of this AGREEMENT, including the period
of warranty, Commercial General Liability Insurance written on an occurrence basis
providing the following minimum limits of liability coverage: One Million Dollars ($1,000,000)
per occurrence with One Million Dollars ($1,000,000) aggregate. Said insurance shall
include coverage for the following hazards: Premises-Operations, blanket contractual
liability (for this AGREEMENT), products liability/completed operations (including any
product manufactured or assembled), broad form property damage, blanket contractual
liability, independent contractors liability, personal and advertising injury, mobile equipment,
owners and contractors protective liability, and cross liability and severability of interest
clauses. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable,
XCU coverage (Explosion, Collapse and Underground)and Riggers/On Hook Liability must
be included in the General Liability policy and coverage must be reflected on the submitted
Certificate of Insurance.
C. Umbrella Excess Liability:
The minimum limits of general liability and Automotive Liability Insurance required, as set
forth herein, shall be provided for through either a single policy of primary insurance or a
combination of policies of primary and umbrella excess coverage. Umbrella excess liability
coverage shall be issued with limits of liability which, when combined with the primary
insurance, will equal the minimum limits for general liability and automotive liability.
D. Automotive Vehicle Liability Insurance:
The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a
comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and
other vehicles providing the following minimum limits of liability coverage: Combined single
limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000)
per person for bodily injury and One Million Dollars ($1,000,000) per accident for property
damage. A statement on an insurance certificate will not be accepted in lieu of the actual
additional insured endorsement.
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E. Drone Liability Insurance:
If a drone will be used, drone liability insurance must be maintained by CONSULTANT in
the amount of One Million Dollars ($1,000,000) in a form acceptable by SANITATION
DISTRICT.
F. Worker's Compensation Insurance:
The CONSULTANT shall provide such Workers' Compensation Insurance as required by
the Labor Code of the State of California in the amount of the statutory limit, including
Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per
occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a
waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsements unless the insurance
carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement
numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to
Jones Act liability may exist, the insurance required herein shall include coverage for Jones
Act claims.
G. Errors and Omissions/Professional Liability:
CONSULTANT shall maintain in full force and effect, throughout the term of this
AGREEMENT, standard industry form professional negligence errors and omissions
insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with
limits in accordance with the provisions of this Paragraph. If the policy of insurance is
written on a "claims made" basis, said policy shall be continued in full force and effect at all
times during the term of this AGREEMENT, and for a period of five (5)years from the date
of the completion of the services hereunder.
In the event of termination of said policy during this period, CONSULTANT shall obtain
continuing insurance coverage for the prior acts or omissions of CONSULTANT during the
course of performing services under the term of this AGREEMENT. Said coverage shall be
evidenced by either a new policy evidencing no gap in coverage or by separate extended
"tail" coverage with the present or new carrier.
In the event the present policy of insurance is written on an "occurrence" basis, said policy
shall be continued in full force and effect during the term of this AGREEMENT or until
completion of the services provided for in this AGREEMENT, whichever is later. In the
event of termination of said policy during this period, new coverage shall be obtained for the
required period to insure for the prior ads of CONSULTANT during the course of
performing services under the term of this AGREEMENT.
CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a
form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention
amounts and the expiration date of said policy, and shall provide renewal certificates not
less than ten (10)days prior to the expiration of each policy term.
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H. Proof of Coverage:
The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and
amendatory endorsements effecting coverage. Said policies and endorsements shall
conform to the requirements herein stated. All certificates and endorsements are to be
received and approved by the SANITATION DISTRICT before work commences. The
SANITATION DISTRICT reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, effecting the coverage required, at
any time. The following are approved forms that must be submitted as proof of coverage:
• Certificate of Insurance ACORD Form 25 (5/2010)or equivalent
• Additional Insurance (ISO Form)CG2010 11 85 or
(General Liability)
The combination of(ISO Forms)
CG 2010 10 01 and CG 2037 10 01
All other Additional Insured endorsements must
be submitted for approval by the SANITATION
DISTRICT, and the SANITATION DISTRICT may
reject alternatives that provide different or less
coverage to the SANITATION DISTRICT.
• Additional Insured Submit Endorsement provided by carrier for
(Auto Liability) the SANITATION DISTRICT approval.
• Waiver of Subrogation State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
• Cancellation Notice State Compensation Insurance Fund
Endorsement No. 2570 or equivalent
I. Cancellation Notice:
Each insurance policy required herein shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty(30) days' prior written notice. The
Cancellation Section of ACORD Form 25 (5/2010)shall state the required thirty (30)days'
written notification. The policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced until thirty (30)days after written notice is given to the SANITATION
DISTRICT except for nonpayment of premium, which shall require not less than ten (10)
days written notice to the SANITATION DISTRICT. Should there be changes in coverage
or an increase in deductible or SIR amounts, the CONSULTANT and its insurance
broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a
description of the changes in coverage and/or any increase in deductible or SIR amounts.
The certified letter must be sent to the attention of Risk Management, and shall be
received by the SANITATION DISTRICT not less than thirty(30) days prior to the
effective date of the change(s) if the change would reduce coverage or increase
deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage
provided to the SANITATION DISTRICT.
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J. Primary Insurance:
All liability policies shall contain a Primary and Non Contributory Clause. Any other
insurance maintained by the SANITATION DISTRICT shall be excess and not
contributing with the insurance provided by CONSULTANT.
K. Separation of Insured:
All liability policies shall contain a "Separation of Insureds"clause.
L. Non-Limiting (if applicable):
Nothing in this document shall be construed as limiting in any way, nor shall it limit the
indemnification provision contained in this AGREEMENT, or the extent to which
CONSULTANT may be held responsible for payment of damages to persons or property.
M. Deductibles and Self-Insured Retentions:
Any deductible and/or self-insured retention must be declared to the SANITATION
DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions
require approval by the SANITATION DISTRICT. At the option of the SANITATION
DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured
retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a
financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of
losses and related investigations, claim administration and defense expenses.
N. Defense Costs:
Liability policies shall have a provision that defense costs for all insureds and additional
insureds are paid in addition to and do not deplete any policy limits.
O. Subconsultants:
The CONSULTANT shall be responsible to establish insurance requirements for any
Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types
reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations
and work.
P. Limits Are Minimums:
If the CONSULTANT maintains higher limits than any minimums shown above, then
SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits
maintained by CONSULTANT.
SECTION 9. PROJECT TEAM AND SUBCONSULTANTS
CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this
AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's
project team members anticipated to be used on this Project under this AGREEMENT by
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CONSULTANT. CONSULTANT shall include a description of the work and services to be
done by each Subconsultant and each of CONSULTANT's Project team member.
CONSULTANT shall include the respective compensation amounts for CONSULTANT and
each Subconsultant, broken down as indicated in Section 4- COMPENSATION.
There shall be no substitution of the listed Subconsultants and CONSULTANT's project team
members without prior written approval by the SANITATION DISTRICT.
SECTION 10. ENGINEERING REGISTRATION
The CONSULTANT's personnel and Subconsultants are comprised of registered engineers
and a staff of specialists and draftsmen in each department. The firm itself is not a registered
engineer but represents and agrees that wherever in the performance of this AGREEMENT,
requires the services of a registered engineer, such services hereunder will be performed
under the direct supervision of registered engineers who are registered in California.
SECTION 11. AUDIT PROVISIONS
A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and
audit, any and all books, records, documents and any other evidence of procedures and
practices that the SANITATION DISTRICT determines are necessary to discover and
verify that the CONSULTANT is in compliance with all requirements under this
AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as
described above, in any and all of their subcontracts, and shall ensure that these rights
are binding upon all Subconsultants.
B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records,
documents and any other evidence of procedures and practices that the SANITATION
DISTRICT determines are necessary to discover and verify all direct and indirect costs, of
whatever nature, which are claimed to have been incurred, or anticipated to be incurred
or to ensure CONSULTANT's compliance with all requirements under this AGREEMENT
during the term of this AGREEMENT and for a period of three (3)years after its
termination.
C. CONSULTANT shall maintain complete and accurate records in accordance with
generally accepted industry standard practices and the SANITATION DISTRICT's policy.
The CONSULTANT shall make available to the SANITATION DISTRICT for review and
audit, all project related accounting records and documents, and any other financial data
within 15 days after receipt of notice from the SANITATION DISTRICT. Upon
SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of
originals of all requested records to the SANITATION DISTRICT. If an audit is
performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT
will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related
accounting records and documents, and any other financial data.
SECTION 12. LEGAL RELATIONSHIP BETWEEN PARTIES
The legal relationship between the parties hereto is that of an independent contractor and
nothing herein shall be deemed to transform CONSULTANT, its staff, independent
contractors, or Subconsultants , agents or employees of the SANITATION DISTRICT and
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shall obtain no rights to any benefits which accrue to the SANITATION DISTRICT's
employees. CONSULTANT'S staff performing services under the AGREEMENT shall at all
times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall
monitor and control its staff and pay wages, salaries, and other amounts due directly to its
staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring,
review, and termination of its staff and shall be accountable for all reports and obligations
respecting them, such as social security, income tax withholding, unemployment
compensation, workers' compensation and similar matters.
SECTION 13. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or
by depositing said notices in the U.S. mail, registered or certified mail, return receipt
requested, postage prepaid.
Notice shall be mailed to the SANITATION DISTRICT at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Michelle Hadaway, Senior Contracts Administrator
Copy: Carla Dillon, Project Manager
Notice shall be mailed to CONSULTANT at:
LSA ASSOCIATES, INC.
20 Executive Park
Suite 200
Irvine, CA 92614
Attention: Nicole Dubois
All communication regarding the Scope of Work, will be addressed to the Project Manager.
Direction from other SANITATION DISTRICT staff must be approved in writing by the
SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT.
SECTION 14. TERMINATION
The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause,
upon giving thirty(30)days written notice to CONSULTANT. In the event of such
termination, CONSULTANT shall be entitled to compensation for work performed on a
prorated basis through and including the effective date of termination.
CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30)days
written notice only if CONSULTANT is not compensated for billed amounts in accordance
with the provisions of this AGREEMENT, when the same are due.
Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in
Section 13- NOTICES.
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SECTION 15. COMPLIANCE
CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not
less than the minimum wage as defined by law, and that it does not discriminate in its
employment with regard to race, color, religion, sex or national origin; that it is in compliance
with all federal, state and local directives and executive orders regarding non-discrimination
in employment; and that it agrees to demonstrate positively and aggressively the principle of
equal opportunity in employment.
The CONSULTANT shall comply with all applicable laws, ordinances, codes, and regulations
of federal, state and local government in all aspects related to this Agreement and any work
completed for the SANITATION DISTRICT.
SECTION 16. AGREEMENT EXECUTION AUTHORIZATION
Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual
executing this document by and on behalf of each Party is a person duly authorized to
execute this AGREEMENT for that Party.
SECTION 17. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding performance or interpretation
of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices
of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity
conducting alternate dispute resolution services.
SECTION 18. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS
If any action at law or in equity or if any proceeding in the form of an Altemative Dispute
Resolution (ADR) is necessary to enforce or interpret the terms of this AGREEMENT, the
prevailing party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
SECTION 19. WARRANTY
CONSULTANT shall perform its services in accordance with generally accepted industry and
professional standards. If, within the 12-month period following completion of its services,
the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to
meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION
DISTRICT, take all such actions as are necessary to correct or complete the noted
defciency(ies).
SECTION 20. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at
CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION
DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the
SANITATION DISTRICT and all of the SANITATION DISTRICTS officers, directors,
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employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and
against any and all claims, damages, liabilities, causes of action, suits, arbitration awards,
losses,judgments, fines, penalties, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs, and all other professional, expert or CONSULTANT's
fees and costs and the SANITATION DISTRICT's general and administrative expenses;
individually, a "Claim", collectively, "Claims")which may arise, pertain to, or relate directly or
indirectly to any work performed, or any operations, activities, or services provided by
CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the
negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers,
agents, employees, CONSULTANT's suppliers, CONSULTANT, Subconsultants,
subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of
any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the
foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the
Indemnified Parties from any Claim arising solely from:
(A) the active negligence or willful misconduct of the Indemnified Parties; or
(B) a natural disaster or other act of God, such as an earthquake; or
(C) the independent action of a third party who is neither one of the Indemnified Parties nor
the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's
supplier, CONSULTANT, Subconsultant, subcontractor, nor anyone employed directly
or indirectly by any of them.
Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest
extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more
than one cause if any such cause taken alone would otherwise result in the obligation to
indemnify hereunder.
CONSULTANT's liability for indemnification hereunder is in addition to any liability
CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of
any of the provisions of this AGREEMENT. Under no circumstances shall the insurance
requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT's
indemnification obligation or other liability hereunder. The terms of this AGREEMENT are
contractual and the result of negotiation between the parties hereto. Accordingly, any rule of
construction of contracts (including, without limitation, California Civil Code Section 1654)
that ambiguities are to be construed against the drafting parry, shall not be employed in the
interpretation of this AGREEMENT.
SECTION 21. DUTY TO DEFEND
The duty to defend hereunder is wholly independent of and separate from the duty to
indemnify and such duty to defend shall exist regardless of any ultimate liability of
CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense
obligation shall arise immediately upon presentation of a Claim by any person if, without
regard to the merit of the Claim, such Claim could potentially result in an obligation to
indemnify one or more Indemnified Parties, and upon written notice of such Claim being
provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the
payment or advance of defense costs by any Indemnified Party shall not be a condition
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precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the
event a final judgment, arbitration, award, order, settlement, or other final resolution expressly
determines that the Claim did not arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the CONSULTANT, to any extent, then the
SANITATION DISTRICT will reimburse CONSULTANT for the reasonable costs of defending
the Indemnified Parties against such Claims.
CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier
termination of this AGREEMENT until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
SECTION 22. COMPLIANCE WITH SANITATION DISTRICT POLICIES AND PROCEDURES
CONSULTANT shall be required to comply with all SANITATION DISTRICT policies and
procedures including the OCSD Safety Standards, Attachment "L" as applicable, all of which
may be amended from time to time.
SECTION 23. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the State of California
and the Parties submit to jurisdiction in Orange County, in the event any action is brought in
connection with this Agreement or the performance thereof.
SECTION 24. TIME OF ESSENCE
Time is of the essence in the performance of this AGREEMENT.
SECTION 25. CONFLICT OF INTEREST
The CONSULTANT covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance
of the services contemplated by this AGREEMENT. No person having such interest shall be
employed by or associated with the CONSULTANT.
SECTION 26. ENTIRE AGREEMENT
This AGREEMENT constitutes the entire understanding and agreement between the parties
and supersedes all previous negotiations between them pertaining to the subject matter
thereof.
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IN WITNESS WHEREOF, this AGREEMENT has been executed in the name of the
SANITATION DISTRICT by its officers thereunto duly authorized, and by the CONSULTANT,
as of the day and year first above written.
CONSULTANT: LSA ASSOCIATES, INC.
By
Date
Printed Name &Title
ORANGE COUNTY SANITATION DISTRICT
By
Gregory C. Sebourn, PLS Date
Chair, Board of Directors
By
Kelly Lore Date
Clerk of the Board
Marc Dubois Date
Contracts, Purchasing and Materials
Management Manager
Attachments: Attachment"A" Scope of Work
Attachment"B" Not Used
Attachment"C" Not Attached
Attachment"D" Allowable Direct Costs
Attachment"E" Not Used
Attachment"F" Not Attached
Attachment"G" Not Attached
Attachment"H" Not Used
Attachment"I" Not Used
Attachment"J" Not Attached
Attachment X' Hourly Labor Rate Schedule
Attachment"L"—OCSD Safety Standards
PROFESSIONAL SERVICES AGREEMENT CEQA PLAN2017.06
LSA ASSOCIATES, INC.
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OPERATIONS COMMITTEE Meeting Date TOBd.of Dir.
07/05/17 07/26/17
AGENDA REPORT emNamber Item Number
9
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Rob Thompson, Director of Engineering
SUBJECT: SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1,
PROJECT NO. P1-101
GENERAL MANAGER'S RECOMMENDATION
Approve a contingency increase of $5,718,000 (4.5%) to the construction contract with
W.M. Lyles Company for Sludge Dewatering and Odor Control at Plant No. 1, Project
No. P1-101, for a total contingency amount of$9,518,000 (7.5 %).
BACKGROUND
Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, replaces existing
solids dewatering and odor control systems, and installs sludge thickening systems at the
Orange County Sanitation District (Sanitation District), Plant No. 1. The objectives of the
project include the following:
1. Replace aging sludge dewatering facilities built in the late 1970s and early 1980s.
2. Provide additional solids handling capacity by improving sludge thickening as a
cost-effective alternative to constructing new digesters.
3. Reduce annual biosolids management costs by reducing biosolids water content.
Currently, the project is physically 95% complete, but there remains a significant
commissioning effort followed by demolition of the existing facility. This project is the
most complex at the Sanitation District and includes sludge conveyance, dewatering and
thickening centrifuge operation, biosolids conveyance, chemical treatment, odor control,
and truck loading systems. Testing these primary process systems, coupled with the
building and safety systems presents significant continuing project risks.
The complexity of the project has resulted in more changes than originally anticipated
that have led to additional costs and delays. A contingency forecast that considers all
project changes to date (including those not yet negotiated) predicts that up to 90% of the
available contingency may be expended with known issues. Furthermore, the
construction schedule is currently forecasted for a two-year schedule delay to the original
four-year construction duration.
Moving forward, additional contingency is requested for risks related to the extensive
commissioning effort, as well as likely Contractor claims for delay-related costs. The
number of changes and resultant impact to the schedule was not anticipated; however,
the project team is working with the Contractor to identify, assess, and mitigate delays
and potential additional costs.
Page 1 of 3
RELEVANT STANDARDS
• Ensure the public's money is wisely spent
• Provide a safe and collegial workplace
PROBLEM
Change orders and construction delays have resulted in additional cost impacts to the
project. The approved construction contract contingency is not estimated to be sufficient
to complete construction.
PROPOSED SOLUTION
The Contractor and Sanitation District staff are working cooperatively to streamline the
commissioning process to minimize compensable delays, as well as to mitigate impacts
as they are identified, and to limit potential future construction changes. Staff requests
an increase in the construction contract contingency of $5,718,000 (4.5%) from
$3,800,000 (3%) for a total contingency of $9,518,000 (7.5%). The project budget is
sufficient for this change and no additional funding is needed.
TIMING CONCERNS
The contingency increase will allow any required changes to be addressed and potential
claims settled without causing additional project delays.
RAMIFICATIONS OF NOT TAKING ACTION
Completion of the remaining work in a timely fashion may not be possible if the
construction contract contingency is insufficient to cover the costs for potential unknown
conditions and for the extended time for commissioning. Without the additional funds,
construction and commissioning activities would be severely hampered and project
delays would be incurred.
PRIOR COMMITTEE/BOARD ACTIONS
November 2012 - Awarded a construction contract to W.M. Lyles Company for a total
amount not to exceed $126,908,300, and approved a contingency of$3,800,000 (3%).
ADDITIONAL INFORMATION
There have been a significant number of contract changes on this project and these have
largely fallen into two primary categories—design optimizations and unknown conditions.
The design optimizations involve changes to improve the cake pumping process,
functionality changes to improve operation and maintenance of the facility, and
clarifications to the design to account for omissions in the contract documents. The
changes relating to unknown conditions involve conflicts with underground utilities,
maintaining existing plant facilities in service, adapting temporary facilities, existing
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instrumentation coordination, and existing facilities that did not match the contract
drawings. Some of these changes, or combinations of changes, have resulted in
schedule delays, some of which may result in contractor overhead delay costs.
The Sanitation District and Contractor are continuing to work proactively to mitigate
potential change order costs and schedule delays. One example of this is a resequencing
of the schedule to commission the dewatering system first, which will allow for the
Sanitation District use of the system prior to the end of the project. This resequencing
will save operating costs and allow demolition work of the existing dewatering systems
earlier in the project saving schedule time.
CEQA
Construction of this project is within the scope of the Subsequent Environmental Impact
Report for the Secondary Treatment and Plan Improvement Project, dated March 2005.
The Subsequent Environmental Impact Report for the Secondary Treatment and Plan
Improvement Project, supplementing the Sanitation District's Strategic Plan Program
Environmental Impact Report (PEIR), was certified in October 1999. Pursuant to CEQA
Guidelines section 15168(c)(4), the Sanitation District has used a written checklist to
document its evaluation of the project and has determined that the project is still within
the scope of PEIR.
In addition, the project was determined to be eligible for a categorical exclusion under the
National Environmental Pollution Act (NEPA) in June 2006.
FINANCIAL CONSIDERATIONS
This request complies with authority levels of the Sanitation District's Purchasing
Ordinance. This item has been budgeted (FY2016-17 and 2017-18), Section 8, Page 50,
and the budget is sufficient for the recommended action.
Date of Aooroval Contract Amount Contincencv
11/28/2012 $126,908,300 $3,800,000(3.0%)
07/26/2017 $5,718,000(4.5%)
$9,518,000(7.5%)
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.com) with the
complete agenda package:
N/A
AL:dm:gc
Page 3 of 3
OPERATIONS COMMITTEE Meeting Date To ad.of Dir.
mlosly —
AGENDA REPORT IWrn Number Iem Number
o —
Orange County Sanitation District
FROM: James D. Herberg, General Manager
Originator: Celia Chandler, Director of Human Resources
SUBJECT: HUMAN RESOURCES —WORKFORCE PLANNING, SAFETY AND
SECURITY
GENERAL MANAGER'S RECOMMENDATION
Information Only.
BACKGROUND
Each month, staff provides an informational presentation on topics of interest to the Board
of Directors. This month's topic is an overview of the Orange County Sanitation District's
Workforce Planning, Safety and Security.
RELEVANT STANDARDS
• Provide professional growth & development
• Positive employer, employee relations
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package:
N/A
Page 1 of 1
ORANGE COUNTY SANITATION DISTRICT
Agenda
Terminology
Glossary
Glossary of Terms and Abbreviations
AQMD Air Quality Management District
ASCE American Society of Civil Engineers
BOD Biochemical Oxygen Demand
CARS California Air Resources Board
CASA California Association of Sanitation Agencies
CCTV Closed Circuit Television
CEQA California Environmental Quality Act
CIP Capital Improvement Program
CRWQCB California Regional Water Quality Control Board
CWA Clean Water Act
CWEA California Water Environment Association
EIR Environmental Impact Report
EMT Executive Management Team
EPA US Environmental Protection Agency
FOG Fats, Oils, and Grease
gpd gallons per day
GWRS Groundwater Replenishment System
ICS Incident Command System
IERP Integrated Emergency Response Plan
LOS Level Of Service
MGD Million Gallons Per Day
NACWA National Association of Clean Water Agencies
NPDES National Pollutant Discharge Elimination System
NWRI National Water Research Institute
O & M Operations & Maintenance
OCCOG Orange County Council of Governments
OCHCA Orange County Health Care Agency
OCSD Orange County Sanitation District
OCWD Orange County Water District
OOBS Ocean Outfall Booster Station
OSHA Occupational Safety and Health Administration
PCSA Professional Consultant/Construction Services Agreement
PDSA Professional Design Services Agreement
POTW Publicly Owned Treatment Works
ppm parts per million
PSA Professional Services Agreement
RFP Request For Proposal
RWQCB Regional Water Quality Control Board
Glossary of Terms and Abbreviations
SARFPA Santa Ana River Flood Protection Agency
SARI Santa Ana River Interceptor
SARWQCB Santa Ana Regional Water Quality Control Board
SAW PA Santa Ana Watershed Project Authority
SCADA Supervisory Control And Data Acquisition
SCAP Southern California Alliance of Publicly Owned Treatment Works
SCAQMD South Coast Air Quality Management District
SOCWA South Orange County Wastewater Authority
SRF Clean Water State Revolving Fund
SSMP Sewer System Management Plan
SSO Sanitary Sewer Overflow
SWRCB State Water Resources Control Board
TDS Total Dissolved Solids
TMDL Total Maximum Daily Load
TSS Total Suspended Solids
WDR Waste Discharge Requirements
WEF Water Environment Federation
W ERF Water Environment & Reuse Foundation
WIFIA Water Infrastructure Finance and Innovation Act
WIIN Water Infrastructure Improvements for the Nation Act
W RDA Water Resources Development Act
Activated sludge process — A secondary biological wastewater treatment process where
bacteria reproduce at a high rate with the introduction of excess air or oxygen and consume
dissolved nutrients in the wastewater.
Benthos —The community of organisms, such as sea stars, worms, and shrimp, which live on,
in, or near the seabed, also known as the benthic zone.
Biochemical Oxygen Demand (BOD) — The amount of oxygen used when organic matter
undergoes decomposition by microorganisms. Testing for BOD is done to assess the amount of
organic matter in water.
Biogas—A gas that is produced by the action of anaerobic bacteria on organic waste matter in a
digester tank that can be used as a fuel.
Biosolids—Biosolids are nutrient rich organic and highly treated solid materials produced by the
wastewater treatment process. This high-quality product can be recycled as a soil amendment on
farmland or further processed as an earth-like product for commercial and home gardens to
improve and maintain fertile soil and stimulate plant growth.
Glossary of Terms and Abbreviations
Capital Improvement Program (CIP) — Projects for repair, rehabilitation, and replacement of
assets. Also includes treatment improvements, additional capacity, and projects for the support
facilities.
Coliform bacteria—A group of bacteria found in the intestines of humans and other animals, but
also occasionally found elsewhere, used as indicators of sewage pollution. E. coli are the most
common bacteria in wastewater.
Collections system— In wastewater, it is the system of typically underground pipes that receive
and convey sanitary wastewater or storm water.
Certificate of Participation (COP)—A type of financing where an investor purchases a share of
the lease revenues of a program rather than the bond being secured by those revenues.
Contaminants of Potential Concern (CPC) — Pharmaceuticals, hormones, and other organic
wastewater contaminants.
Dilution to Threshold (DIT) — The dilution at which the majority of people detect the odor
becomes the D/T for that air sample.
Greenhouse Gases (GHG) — In the order of relative abundance water vapor, carbon dioxide,
methane, nitrous oxide, and ozone gases that are considered the cause of global warming
("greenhouse effect').
Groundwater Replenishment System (GWRS) — A joint water reclamation project that
proactively responds to Southern California's current and future water needs. This joint project
between the Orange County Water District and the Orange County Sanitation District provides 70
million gallons per day of drinking quality water to replenish the local groundwater supply.
Levels Of Service (LOS) — Goals to support environmental and public expectations for
performance.
N-Nitrosodimethylamine (NDMA) — A N-nitrosamine suspected cancer-causing agent. It has
been found in the Groundwater Replenishment System process and is eliminated using hydrogen
peroxide with extra ultra-violet treatment.
National Biosolids Partnership (NBP)—An alliance of the National Association of Clean Water
Agencies and Water Environment Federation, with advisory support from the US Environmental
Protection Agency. NBP is committed to developing and advancing environmentally sound and
sustainable biosolids management practices that go beyond regulatory compliance and promote
public participation to enhance the credibility of local agency biosolids programs and improved
communications that lead to public acceptance.
Plume — A visible or measurable concentration of discharge from a stationary source or fixed
facility.
Glossary of Terms and Abbreviations
Publicly Owned Treatment Works (POTW) —A municipal wastewater treatment plant.
Santa Ana River Interceptor(SARI) Line —A regional brine line designed to convey 30 million
gallons per day of non-reclaimable wastewater from the upper Santa Ana River basin to the ocean
for disposal, after treatment.
Sanitary sewer—Separate sewer systems specifically for the carrying of domestic and industrial
wastewater. Combined sewers carry both wastewater and urban runoff.
South Coast Air Quality Management District (SCAQMD) — Regional regulatory agency that
develops plans and regulations designed to achieve public health standards by reducing
emissions from business and industry.
Secondary treatment — Biological wastewater treatment, particularly the activated sludge
process, where bacteria and other microorganisms consume dissolved nutrients in wastewater.
Sludge—Untreated solid material created by the treatment of wastewater.
Total Suspended Solids (TSS)—The amount of solids floating and in suspension in wastewater.
Trickling filter — A biological secondary treatment process in which bacteria and other
microorganisms, growing as slime on the surface of rocks or plastic media, consume nutrients in
wastewater as it trickles over them.
Urban runoff—Water from city streets and domestic properties that carry pollutants into the storm
drains, rivers, lakes, and oceans.
Wastewater—Any water that enters the sanitary sewer.
Watershed—A land area from which water drains to a particular water body. The Orange County
Sanitation District's service area is in the Santa Ana River Watershed.