HomeMy WebLinkAbout32368
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AGREEMENT FOR ENGINEERING CONTRACTOR SERVICES
THIS AGREEMENT made and entered into this ____ day of _______, ____,
between the County of Fresno, a political subdivision of the State of California
(hereinafter called "COUNTY"), and STEARNS, CONRAD & SCHMIDT, CONSULTING
ENGINEERS, INC. dba SCS FIELD SERVICES, located at 4730 Enterprise Way, Suite
A, Modesto, California 95356 (hereinafter called "CONTRACTOR").
WITNESSETH:
WHEREAS, the COUNTY requires specialized services to conduct the State and
Federal-required operation and maintenance of the landfill gas collection and control
system (LFGCCS) at the Southeast Regional Landfill; and
WHEREAS, the CONTRACTOR is qualified and willing to provide the COUNTY
the professional services required for this project;
NOW, THEREFORE, the parties hereto have and by these presents do agree as
follows:
I. CONTRACTING OF CONTRACTOR:
A. The COUNTY hereby contracts with the CONTRACTOR as an
independent contractor to provide all the services required for the project. Said services
are described under Article III herein.
B. The CONTRACTOR shall retain such engineering and other
subcontractors as CONTRACTOR requires to assist in completing the work. All
subcontractors used by CONTRACTOR shall be approved in writing by the COUNTY
before they are retained by the CONTRACTOR, which approval shall not be
unreasonably withheld. Should CONTRACTOR retain such persons, compensation to
be paid to CONTRACTOR under Article V below, shall not be increased.
C. The CONTRACTOR's services shall be performed as expeditiously as is
consistent with professional skill and the orderly progress of the work.
D. The contact person for the CONTRACTOR shall be:
Anton Svorinich (telephone (209) 545-8490, Fax (209) 545-8391).
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II. DESCRIPTION OF THE WORK COVERED BY THIS AGREEMENT:
A. The work covered by this Agreement is for the CONTRACTOR services
described in Article III.
III. CONTRACTORS SERVICES:
The CONTRACTOR agrees to provide professional services as described below
and more specifically described in the CONTRACTOR’s response to the COUNTY’s
Request for Quotation No. 968-5374, which is attached hereto as Attachment “A” and
incorporated by this reference as though fully set forth:
TASK 1 - ROUTINE LFGCCS OPERATION, MONITORING AND MAINTENANCE
Routine LFGCCS operation, monitoring and maintenance as required by
applicable federal and state law and regulation and any site specific permits, the
respective monthly, quarterly and annual fees for which are set forth in Attachment “A”;
TASK 2 - LANDFILL GAS (LFG) SURFACE EMISSIONS TESTING AND REPORTING
CONTRACTOR shall conduct LFG surface emission testing and reporting in
accordance with San Joaquin Valley Air Pollution Control District (SJVAPCD) Rule
4642, which services CONTRACTOR agrees to perform for the fees set forth in
Attachment “A” hereto as follows: annual testing fee of $1,995.00 and reporting fee of
$495.00 (totaling $2,490.00).
IV. COUNTY'S OBLIGATIONS:
The COUNTY will:
A. Compensate the CONTRACTOR as provided in this Agreement.
B. Provide a "County Representative" who will represent the COUNTY and
who will coordinate with the CONTRACTOR as appropriate to facilitate
CONTRACTOR’s performance under the provisions of this Agreement. The County
Representative will be the COUNTY’s Director of Department of Public Works and
Planning or his/her designee. The CONTRACTOR shall communicate and coordinate
with the County Representative who will provide the following services:
1. Examine documents submitted to the COUNTY by the
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CONTRACTOR and timely render decisions pertaining thereto.
2. Provide communication between the CONTRACTOR and COUNTY
officials and commissions (including user Department).
3. Provide right of entry on designated property for accomplishment of
authorized work.
C. Give reasonably prompt consideration to all matters submitted by the
CONTRACTOR for approval, so as to avoid any substantial delays in the
CONTRACTOR's performance of the work. An approval, authorization or request to the
CONTRACTOR given by the COUNTY will only be binding upon the COUNTY under
the terms of this Agreement if in writing and signed on behalf of the COUNTY by the
County Representative or a designee.
V. COMPENSATION:
A. Total Fee:
1. Notwithstanding any other provision in this Agreement, the Total
Fee for the services required under Article III shall be limited to a maximum of $44,670
annually, comprised of a Basic Fee of $24,670 annually and an Extra Services
allocation of $20,000 annually. Accordingly, the maximum cumulative amount of the
Total Fee for the original three-year term of the Agreement shall be $134,010 (i.e.,
$44,670 annually for each of the three years the Agreement is in effect); and it is further
hereby provided that if the Agreement is renewed as provided for in Section XXI.B.,
then the maximum cumulative amount of the Total Fee, Basic Fee and Extra Services
allocations shall be increased accordingly, without the need for any amendment of this
Agreement. Accordingly, if this Agreement is renewed for one additional year at the
conclusion of its original three-year term, the Total Fee hereunder would be $178,680
(i.e., $44,670 annually for each of the four years the Agreement is in effect). Likewise, if
the Agreement is renewed for the maximum two additional years, then the maximum
cumulative amount of the Total Fee hereunder would be $223,350 (i.e., $44,670
annually for each of the five years the Agreement is in effect).
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B. Basic Fee:
1. Notwithstanding any other provision in this Agreement, the Basic
Fee for the Services required under Article III, Tasks 1 and 2 shall be comp uted at the
cost rates shown in Attachment “A” hereto. Those rates as listed therein for such Basic
Fee services shall remain in effect for the entire duration of this Agreement. Within the
Total Fee limitation described in Paragraph V.A.1. above, the Maximum Annual Basic
Fee shall be divided as follows:
Task 1 Routine LFGCCS Operation, Monitoring and Maintenance $22,180.00
Task 2 Surface Emission Monitoring $ 2,490.00
Total Maximum Annual Basic Fee $24,670.00
2. Upon written agreement and authorization by both County’s Landfill
Operations Manager and CONTRACTOR, the amounts listed above for each Task may
be redistributed within the limits of the total amount listed for the Annual Basic Fee.
Provided, however, that any increase(s) in the maximum amount of the Annual Basic
Fee for any contract year and/or the cumulative total of the Basic Fee as established in
Paragraph V.A.1 above, will require a written amendment to this Agreement, approved
by the Board of Supervisors in accordance with the provisions of Article XVI below.
C. Extra Services:
1. A maximum allocation of $20,000 annually to pay for authorized
Extra Services is provided herein by this Agreement. Payment of Extra Service s in
excess of $20,000 annually is prohibited except upon a written Amendment to this
Agreement pursuant to the provisions of Article XVI hereof.
2. The CONTRACTOR shall not undertake any Extra Services without
the advance written authorization of the County Representative. The CONTRACTOR
and the COUNTY shall expressly confirm in writing the authorization and maximum cost
for any such services before the CONTRACTOR initiates any work thereon.
3. The following are CONTRACTOR services which are considered as
not included in Article III herein, but may be required and thus considered Extra
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Services.
a. Providing unforeseen, extraordinary, or unique services,
additional LFGCCS maintenance and/or related work required by regulatory agencies
or, items not covered or normally included in the Basic Fee, but authorized by the
County Representative.
b. Extra Services shall be characterized and invoiced under
one of the following headings, as appropriate to the type of services requested and as
authorized by the County Representative:
TASK 3 - NON-ROUTINE SCHEDULED MAINTENANCE (EXTRA SERVICES)
Non-routine scheduled maintenance consists of corrective repair or maintenance
work identified by the CONTRACTOR during regular Site visits or by COUNTY staff.
This work is essential for proper LFGCCS operation; however, it is considered work that
can be scheduled to allow for procurement of materials or equipment or assignment of
personnel. The CONTRACTOR shall provide a not-to-exceed quote to the COUNTY for
all non-routine scheduled maintenance and work will only be performed after
authorization from the COUNTY to the CONTRACTOR. Written authorization will be
required prior to commencement of the work;
TASK 4 - EMERGENCY MAINTENANCE (EXTRA SERVICES)
Emergency maintenance is required to provide immediate response to protect
life, property, and the environment or to restore system operations. Due to the nature of
these items, repairs may have to be initiated as needed, 24 hours per day, 7 days a
week, 365 days per year. Emergency maintenance will only be performed after verbal
authorization from COUNTY staff, to be followed by a written authorization confirmation;
TASK 5 – CONSULTATION/REGULATORY AGENCY RESPONSE (EXTRA
SERVICES)
Consultation and/or preparation of response to regulatory agency will be
provided as needed and will be based on the CONTRACTOR’s submittal, in writing, of
the proposed scope of work and proposed maximum (“not to exceed”) cost for
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
completion thereof. All such proposals shall be submitted to the County in advance of
performing any services. The CONTRACTOR will perform services only after receiving
from the County Representative written acceptance of the proposal.
4. Fees for Extra Services authorized under Tasks 3 and 4 as
described above shall be computed at the hourly cost rates and material costs shown in
CONTRACTOR’S response to COUNTY’s Request for Quotation No. 968-5374
(Attachment “A” hereto, as incorporated herein under Article III above). Fees for Extra
Services requested to be provided by CONTRACTOR under Task 5 above shall be
authorized as maximum (“not to exceed”) amounts for specifically defined services.
5. Notwithstanding the provisions of Paragraph V.B.1 establishing the
hourly rates for Basic Fee services hereunder, the hourly rates for Tasks 3 and 4 (Extra
Services) may be renegotiated annually at CONTRACTOR’S request by submitting the
proposed changes to the County Representative at least sixty (60) days prior to the
renewal date of this Agreement. Upon review and written approval of the County
Representative, the COUNTY may authorize the change in hourly rates. However, the
total amount of the Maximum Annual Basic Fee may not be increased except upon
formal written Amendment to this Agreement, approved by COUNTY’s Board of
Supervisors in accordance with Article XVI below.
6. In the event COUNTY expressly authorizes Extra Services,
CONTRACTOR shall keep complete records showing the hours and description of
activities worked by each person who works on the project and all costs and charges
applicable to the Extra Services work authorized. Should there be a claim for Extra
Services, the CONTRACTOR agrees and acknowledges that the claimant shall
specifically identify the activity, performer of the activity, reason for the activity, and
COUNTY official requesting the activity, and that failure to do will result in denial of the
claim. CONTRACTOR shall be responsible for all subconsultants keeping similar
records. The CONTRACTOR shall not stop the work, including the work in other areas
unrelated to the Extra Services request or claim, unless it can be shown the project
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
work cannot proceed while a claim or request for Extra Services is being evaluated.
D. Payments:
1. Progress payments will be made by the COUNTY upon receipt and
approval of the CONTRACTOR's monthly invoices based on the COUNTY's evaluation
of the completion of the respective components of the projects(s). Invoices shall clearly
identify each task to which the work pertains, clearly identify charges for tasks
authorized as Extra Services, and shall be submitted with the documentation identified
in Article V.D.4. Invoices shall be submitted to:
Resources Division
Attn: Landfill Operations Manager
Fresno County Department of Public
Works and Planning
2220 Tulare Street, Sixth Floor
Fresno, CA 93721-2106
2. Upon receipt of a proper invoice, the COUNTY’s Department of
Public Works and Planning will take a maximum of ten (10) working days to review,
approve, and submit it to the COUNTY’s Auditor-Controller/Treasurer-Tax Collector.
Unsatisfactory or inaccurate invoices may be returned to the CONTRACTOR for
correction and resubmittal. Payment will be issued to CONTRACTOR within forty (40)
calendar days of the date the Auditor-Controller/Treasurer-Tax Collector receives the
approved invoice.
3. An unresolved dispute over a possible error or omission may cause
payment of CONTRACTOR fees in the disputed amount to be withheld by the
COUNTY.
4. Concurrently with the invoices, the CONTRACTOR shall provide its
certification acceptable to the COUNTY, and shall provide, on COUNTY request, copies
of issued checks, receipts, or other COUNTY pre-approved documentation, that
complete payment has been made to all subcontractors as provided herein for all
previous invoices paid by the COUNTY.
5. Final invoice shall be submitted to COUNTY no later than sixty (60)
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
days after project is completed. Payment shall not be made until all post-project
services are completed, including but not limited to furnishing of required reports.
6. In the event the COUNTY reduces the scope of the project, the
CONTRACTOR will be compensated on a pro rata basis for actual work completed and
accepted by the COUNTY in accordance with the terms of this Agree ment.
VI. COMPENSATION RECORDS:
The CONTRACTOR shall keep complete records showing the hours and
description of activities performed by each person who works on the project and all
associated costs or charges applicable to work covered by the Basic Fee and approved
Extra Services. The CONTRACTOR will be responsible for all sub-contractors keeping
similar records.
VII. AUDITS, ACCOUNTING AND INSPECTIONS ACCESS:
A. The CONTRACTOR shall at any time during regular business hours, and
as often as the COUNTY may deem necessary, make available to the COUNTY’s
Auditor-Controller/Treasurer-Tax Collector, or their authorized representatives for
examination all of its records and data with respect to matters covered by this
Agreement. The CONTRACTOR shall permit the COUNTY to audit and inspect all
invoices, materials, payrolls, records of personnel, conditions of employment, and other
data relating to matters covered by this Agreement.
B. The CONTRACTOR shall be subject to the examination and audit of the
Auditor General for a period of three (3) years after final payment under Agreement
(Government Code Section 8546.7)
VIII. ERRORS OR OMISSION CLAIMS AND DISPUTES:
A. Definitions:
1. A "Consultant" is a duly licensed Architect or Engineer, or other
provider of professional services, acting as a business entity (owner, partnership,
corporation, joint venture or other business association) in accordance with the terms of
an Agreement with the COUNTY.
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. A "Claim" is a demand or assertion by one of the parties seeking,
as a matter of right, adjustment or interpretation of contract terms, payment of money,
extension of time, change orders, or other relief with respect to the terms of the
contract. The term "Claim" also includes other disputes and matters in questi on
between the COUNTY and CONTRACTOR arising out of or relating to the contract.
Claims must be made by written notice. The provisions of Government Code section
901, et seq., shall apply to every claim made to COUNTY. The responsibility to
substantiate claims shall rest with the party making the claim. The term "Claim" also
includes any allegation of an error or omission by the CONTRACTOR.
B. In the spirit of cooperation between the COUNTY and CONTRACTOR, the
following procedures are established in the event of any claim or dispute alleging an
error, omission, or negligent act of the CONTRACTOR.
1. Claims, disputes or other matters in question between the parties,
arising out of or relating to this Agreement, shall not be subject to arbitration, but shall
be subject to the following procedures.
2. The project manager of COUNTY and CONTRACTOR shall meet
and confer and attempt to reach agreement on any dispute, including what damages
have occurred, the measure of damages and what proportion of damages ,
if any, shall be paid by either party. The parties agree to consult and consider the use
of mediation or other form of dispute resolution prior to resorting to litigation.
3. If the COUNTY and CONTRACTOR cannot reach agreement under
Section VIII.B.2., the disputed issues may, upon concurrence by all parties, be
submitted to a panel of three (3) for a recommended resolution. The CONTRACTOR
and the COUNTY shall each select one (1) member of the panel, and the third member
shall be selected by the other two panel members. The discovery rights provided by
California Code of Civil Procedure for civil proceedings shall be available and
enforceable to resolve the disputed issues. Either party requesting this dispute
resolution process shall, when invoking the rights to this panel, give to the other party a
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
notice describing the claims, disputes and other matters in question. Prior to twenty
(20) days before the initial meeting of the panel, both parties shall submit all documents
such party intends to rely upon to resolve such dispute. If it is determined by the panel
that any party has relied on such documentation, but has failed to previously submit
such documentation on a timely basis to the other party, the other party shall be entitled
to a 20-day continuance of such initial meeting of the panel. Issuance of the panel’s
recommended decision is not a condition precedent to arbitration, mediation or litigation.
4. Upon receipt of the panel's recommended resolution of the dispute
issues, the COUNTY and the CONTRACTOR shall again meet and confer and attempt
to reach agreement. If the parties still are unable to reach agreement, each party shall
have recourse to all appropriate legal and equitable remedies.
C. The procedures to be followed in the resolution of claims and disputes
may be modified at any time by mutual agreement of the parties hereto.
D. The CONTRACTOR shall continue to perform its obligations under this
Agreement pending resolution of any dispute, and the COUNTY shall continue to make
payments of all undisputed amounts due under this Agreement.
E. When a claim by either party has been made alleging the
CONTRACTOR's error, omission or negligent act, the COUNTY Project Manager and
the CONTRACTOR shall meet and confer within twenty-one (21) days after the written
notice of the claim has been provided.
IX. JOINDER OF PARTIES:
The CONTRACTOR, the CONTRACTOR's consultants of any tier,
subcontractors of any tier, suppliers and construction lenders shall all be bound by the
dispute resolution provisions of this agreement, and immediately upon demand of
COUNTY or CONTRACTOR, shall participate in and shall become parties to the dispute
resolution process, provided they have signed any document that incorporates or refers
to the dispute resolution provisions of this agreement. Failure, whether intended or
inadvertent, of CONTRACTOR to ensure that such nonparties have signed such a
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
document shall inure only to CONTRACTOR's detriment, if any there be. COUNTY
shall not suffer a detriment by CONTRACTOR's action or inaction in this regard. If such
a party after due notice fails to appear at and participate in the dispute resolution
proceedings, the panel established in accordance with the provisions of Article VIII.B.3.
shall make a decision based on evidence introduced by the party or parties who do
participate.
X. CONTRACTOR'S OBLIGATIONS RELATING TO REGULATORY
REQUIREMENTS:
A. The CONTRACTOR shall analyze and adhere to requirements of all
applicable regulatory provisions, rules, and codes, which shall include, but not be limited
to: applicable provisions of San Joaquin Valley Air Pollution Control District (SJVAPCD)
rules and regulations; the site-specific permit to operate issued by SJVAPCD; California
Code of Regulations (CCR) Titles 14, 22, 23 and 27; and any applicable provisions of
the Code of Federal Regulations (such as Title 40 CFR); and any amendments or
modifications to any of the foregoing, together with such other provisions, applicable to
the regulation of landfill gas emissions and solid waste landfills, as may be promulgated
subsequent to the execution of this Agreement .
XI. INDEPENDENT CONTRACTOR:
A. In performance of the work, duties, and obligations assumed by
CONTRACTOR under this Agreement, it is mutually understood and agreed that
CONTRACTOR, including any and all of CONTRACTOR's officers, agents and
employees, will at all times be acting and performing as an independent contractor, and
shall act in an independent capacity and not as an officer, agent, servant, employee,
joint venturer, partner or associate of the COUNTY. Furthermore, COUNTY shall have
no right to control or supervise or direct the manner or method by which CONTRACTOR
shall perform its work and function. However, COUNTY shall retain the right to
administer this Agreement so as to verify that CONTRACTOR is performing its
obligations in accordance with the terms and conditions thereof. CONTRACTOR and
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY shall comply with all applicable provisions of law and the rules and
regulations, if any, of Governmental authorities having jurisdiction over matters the
subject thereof.
B. Because of its status as an independent contractor, CONTRACTOR shall
have absolutely no right to employment rights and benefits available to COUNTY
employees. CONTRACTOR shall be solely liable and responsible for providing to, or on
behalf of its employees all legally-required employee benefits. In addition,
CONTRACTOR shall be solely responsible and save COUNTY harmless from all
matters relating to payment of CONTRACTOR's employees, including compliance with
Social Security, withholding, and all other regulations governing such matters. It is
acknowledged that during the term of this Agreement CONTRACTOR may be providing
services to others unrelated to the COUNTY or to this Agreement.
XII. PARTIES BOUND BY AGREEMENT:
This Agreement shall be binding upon the COUNTY, the CONTRACTOR, and
their successors in interest, legal representatives, executors, administrators, and
assigns with respect to all covenants as set forth herein.
XIII. REQUIRED APPROVALS:
It is understood that the CONTRACTOR shall not assign, sublet, subcontract, or
transfer CONTRACTOR's rights or obligations in this Agreement without the prior
express, written consent of the COUNTY. Such approval shall only be given by the
COUNTY’s Board of Supervisors.
XIV. COMPLIANCE WITH LAWS:
CONTRACTOR shall comply with Federal, State, and local laws, ordinances,
regulations, and Fresno County Charter provisions applicable and in effect when
professional services are performed.
XV. GOVERNING LAW :
A. Any controversy or claim arising out of or relating to this Agreement which
cannot be amicably settled without court action shall be litigated either in a state court
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for Fresno County, California, or in the U.S. District Court for the Eastern District of
California, located in Fresno County.
B. The rights and obligations of the parties and all interpretations and
performance of this Agreement shall be governed in all respects by the laws of the State
of California.
XVI. AMENDMENTS:
Any changes to this Agreement requested either by the COUNTY or
CONTRACTOR may be effected only if mutually agreed upon in writing by each of the
parties hereto. This Agreement shall not be modified or amended, nor shall any rights
of a party hereto be waived, except by such a writing.
XVII. CONTRACTOR'S LEGAL AUTHORITY:
Each individual executing this Agreement on behalf of CONTRACTOR hereby
covenants, warrants, and represents: (i) that he or she is duly authorized to execute
and deliver this Agreement on behalf of such corporation in accordance with a duly
adopted resolution of the corporation's board of directors and in accordance with such
corporation's articles of incorporation or charter and bylaws; (ii) that this Agreement is
binding upon such corporation; and (iii) that CONTRACTOR is a duly organized and
legally existing corporation in good standing in the State of California.
XVIII. HOLD HARMLESS:
CONTRACTOR shall hold harmless and indemnify COUNTY, its officers, agents,
and employees, against the payment of any and all costs and expenses (including
reasonable attorney fees and court costs), damages, claims, suits, losses, and liability
for bodily and personal injury to or death of any person or for loss of any property
resulting from or arising out of any wrongful acts, errors or omissions of
CONTRACTOR, its officers, agents, and employees, in performing or failing to perform
any work, services, or functions under this Agreement.
XIX. LIABILITY INSURANCE:
A. Prior to commencing the duties under the Agreement with the COUNTY,
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the CONTRACTOR shall furnish the COUNTY, at no additional cost to the COUNTY,
certificates for the following insurance policies which shall be kept in force during the
term of the Agreement (i.e., until the Agreement is terminated or it expires), and for such
additional time as may be specified herein with respect to a particular type of policy.
1. Commercial General Liability Insurance or Comprehensive General
Liability Insurance, naming the COUNTY as an additional insured, with limits of not less
than $1,000,000 per occurrence.
2. Comprehensive Automobile Liability Insurance with limits for bodily
injury of not less than $250,000 per person, $250,000 per accident and for property
damage of not less than $50,000, or such coverage with a combined single limit of
$500,000.
3. Worker's Compensation insurance policy as required by the
California Labor Code.
4. Professional Liability Insurance:
a. In the minimum amount of at least $250,000 coverage per
claim, with an annual aggregate of at least $500,000, and with a deductible not to
exceed $50,000. A deductible greater than $50,000 will be accepted upon the
COUNTY receiving satisfactory, certified information of the CONTRACTOR's ability to
support such a deductible. The financial ability to support the difference between the
$50,000 and greater deductible amount requested by CONTRACTOR shall be
guaranteed by any of the following:
1. Cash deposit with a trustee bank.
2. Irrevocable letter of credit issued by a bank for a
period sufficient for the COUNTY to determine if there is a claim to be made against the
CONTRACTOR, e.g. six months after termination of Agreement.
b. CONTRACTOR and subcontractors shall make full
disclosure, in writing to the COUNTY, of all pending and open claims and disputes
during the course of this agreement that affect the specified aggregate limits of the
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Professional Liability Insurance policy.
c. Professional Liability Insurance shall extend for a minimum
of two (2) years past the date of final payment to CONTRACTOR, including the
resolution of all claims, disputes, and matters in question regarding the project.
d. In the event that CONTRACTOR voluntarily changes or
involuntarily changes, due to circumstances beyond its control, Professional Liability
Insurance policy carrier during the course of this Agreement, such new policy shall
include prior acts coverage retroactive, at least, to the date of execution of this
Agreement. CONTRACTOR may, at its option and expense, purchase supplemental or
"tail" coverage from the former policy carrier, negotiate a retroactive reporting date with
the new policy carrier for claims incurred but not reported as of the date of change in
policy carrier, and shall in any event maintain Professional Liability Insurance in a
manner that provides continuous coverage to the COUNTY throughout the term of this
Agreement, and for a period of two (2) years past the issuance of final payment to the
CONTRACTOR.
e. The CONTRACTOR may, at its option and expense and
upon approval of the COUNTY, provide specific project professional liability insurance
for itself and all sub-contractors for this project, extending from the beginning of project
until two (2) years past the issuance of final payment to the CONTRACTOR. This time
period specifically includes that time required for the resolution of all claims and
disputes.
B. All policies shall be issued by insurers licensed to do business in the State
of California. CONTRACTOR shall give COUNTY at least thirty (30) days written
advance notice of any expiration, cancellation or reduction in the coverage of any of the
aforesaid policies.
C. The COUNTY, its officers, agents and employees, individually and
collectively, shall be named as additional insured in Commercial General Liability
Insurance or Comprehensive General Liability Insurance, but only insofar as the
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
operations under this contract are concerned. Such coverage of COUNTY as additional
insured shall apply as primary insurance and any other insurance, or self -insurance,
maintained by the COUNTY, its officers, agents, and employees, shall be excess only
and not contributing with insurance provided under the CONTRACTOR's policies
herein.
D. In the event CONTRACTOR fails to keep in effect at all times insurance
coverage as herein provided, the COUNTY may, in addition to other remedies it may
have, suspend or terminate this Agreement upon the occurrence of such event.
XX. OWNERSHIP OF DOCUMENTS:
A. CONTRACTOR understands and agrees that COUNTY shall retain full
ownership rights of the drawings and the work-product of CONTRACTOR for the
project, to the fullest extent permitted by law. In this regard, CONTRACTOR
acknowledges and agrees that CONTRACTOR's services are on behalf of COUNTY
and are "works made for hire," as that term is defined in copyright law, by COUNTY;
that the drawings and work-product to be prepared by CONTRACTOR are for the sole
and exclusive use of COUNTY, and shall be the sole property of COUNTY and its
assigns, and the COUNTY and its assigns shall be the sole owner of all patents,
copyrights, trademarks, trade secrets and other contractual and intangible rights in
connection therewith; that all the rights, title, and interest in and to the drawings and
work-product will be transferred to COUNTY by CONTRACTOR, and CONTRACTOR
will assist COUNTY to obtain and enforce patents, copyrights, trademarks, trade
secrets, and all contractual and other rights of any kind or nature relating to COUNTY’s
ownership of said drawings and work-product; and that COUNTY shall be and become
the owner of such drawings and work product, free and clear of any claim by
CONTRACTOR or anyone claiming any right through CONTRACTOR. CONTRACTOR
further acknowledges and agrees that COUNTY's ownership rights in such drawings
and work product shall apply regardless of whether such drawings or work product, or
any copies thereof, are in the possession of CONTRACTOR, or any other person, firm,
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
corporation, or entity. For the purpose of this Agreement the terms "drawings and
work-product" shall mean all reports and study findings developed for the project,
drawings and schematic or preliminary design documents of each project, certified
reproducibles of the original final construction contract drawings of each project,
specifications of each project, the approved opinion of probable construction cost of
each project, record drawings of each project, as-built plans of each project, and
discoveries, developments, designs, improvements, inventions, formulas, processes,
techniques, or specific know-how and data generated or conceived or reduced to
practice or learning by CONTRACTOR, either alone or jointly with others, that result
from the tasks assigned to CONTRACTOR by COUNTY under this Agreement.
B. All documents, including calculations, required in performing services
under this Agreement shall be submitted to, and shall remain the property of the
COUNTY.
XXI. TIME OF COMPLETION:
CONTRACTOR shall diligently proceed with the agreed scope of services and
shall provide such services in a timely manner. Failure of the CONTRACTOR to
provide such services on a timely basis, is sufficient cause to terminate this Agreement
immediately, at the option of the COUNTY, in accordance with Article XXII IB, unless the
delay is attributable to the COUNTY or State.
XXII. TERM:
The term of this Agreement shall be for a period of three (3) years, commencing
on February 9, 2016 through and including February 8, 2019. This Agreement may be
extended for two (2) additional consecutive twelve (12) month extension period. The
Director of Public Works and Planning or his or her designee is authorized to execute
such written approval on behalf of COUNTY based on CONTRACTOR’S satisfactory
performance.
XXIII. TERMINATION OF AGREEMENT:
A. This Agreement may be terminated without cause at any time by the
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY upon thirty (30) calendar days written notice. If the COUNTY terminates this
Agreement, the CONTRACTOR shall be compensated for services satisfactorily
completed to the date of termination based upon the compensation rates and subject to
the maximum amounts payable hereunder as agreed to in Article V, together with such
additional services satisfactorily performed after termination which are expressly
authorized by the County Representative to conclude the work performed to date of
termination.
B. The COUNTY may immediately suspend or terminate this Agreement in
whole or in part, where in the determination of the COUNTY there is:
1. An illegal or improper use of funds;
2. A failure to comply with any term of this Agreement;
3. A substantially incorrect or incomplete report submitted to the
COUNTY;
4. Improperly performed service.
C. In no event shall any payment by the COUNTY constitute a waiver by the
COUNTY of any breach of this Agreement or any default which may then exist on the
part of the CONTRACTOR. Nor shall such payment impair or prejudice any remedy
available to the COUNTY with respect to the breach or default. The COUNTY shall
have the right to demand of the CONTRACTOR the repayment to the COUNTY of any
funds disbursed to the CONTRACTOR under this Agreement, which, in the judgment of
the COUNTY and as determined in accordance with the procedures of Article VIII,
"Errors or Omissions Claims and Disputes", were not expended in accordance with the
terms of this Agreement. The CONTRACTOR shall promptly refund any such funds
upon demand.
D. The terms of this Agreement, and the services to be provided thereunder,
are contingent on the approval of funds by the appropriating government agency.
Should sufficient funds not be allocated, the services provided may be modified, or this
Agreement terminated at any time by giving the CONTRACTOR thirty (30) days
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
advance written notice.
XXIV. ENTIRE AGREEMENT:
This Agreement constitutes the entire agreement between the COUNTY and the
CONTRACTOR with respect to the subject matter hereof and supersedes all previous
negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly included in this Agreement.
XXV. DISCLOSURE OF SELF-DEALING TRANSACTIONS:
This provision is only applicable if the CONTRACTOR is operating as a
corporation (a for-profit or non-profit corporation) or if during the term of this Agreement,
the CONTRACTOR changes its status to operate as a corporation. Members of the
CONTRACTOR’s Board of Directors shall disclose any self -dealing transactions that
they are a party to while CONTRACTOR is providing goods or performing service s
under this Agreement. A self-dealing transaction shall mean a transaction to which the
CONTRACTOR is a party and in which one or more of its directors has a material
financial interest. Members of the Board of Directors shall disclose any self -dealing
transactions that they are a party to by completing and signing a Self -Dealing
Transaction Disclosure Form (Attachment “B” hereto), and submitting it to COUNTY
prior to commencing with the self-dealing transaction or immediately thereafter.
XXVI. SEVERABILITY:
Should any provision herein be found or deemed to be invalid, this Agreement
shall be construed as not containing such provision, and all other provisions which are
otherwise lawful shall remain in full force and effect, and to this end the provisions of
this Agreement are hereby declared to be severable.
///
///
///
///
///
1 IN WITNESS WHEREOF, the parties hereto have executed this
2 Agreement as of the day and year first hereinabove written.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SCS FIELD SERVICES
4730 ENTERPRISE WAY, SUITE A
MODESTO, CA 95356
BY:~ flu~/~
VICE PRESIDE~T ' · L
A./1-~ Ju./ l../\.\.C
REVIEWED AND RECOMMENDED
FOR APPROVAL
BY: ~u/~--
ALAN WEAVER, DIRECTOR
DEPARTMENT OF PUBLIC WORKS
AND PLANNING
FOR ACCOUNTING USE ONLY
Fund: 0720
Subclass: 15000
Org. No.: 9020
Account: 7295
20
COUNTY OF FRESNO
BY: f-_-::1-~
ERNEST BUDDY ME
CHAIRMAN
BOARD OF SUPERVISORS
DATE: j: ~~~~~~~~----~
ATTEST: BERNICE E. SEIDEL, CLERK
BOARD OF SUPERVISORS
APPROVEDASTOACCOUNTI G
FORM:
VICKI CROW, C.P.A. AUDITOR-
CONTROLLER/TREASURER-TAX
COLLECTOR
sv -ifccL t~tn~
DEPUTY
SELF-DEALING TRANSACTION DISCLOSURE FORM INSTRUCTIONS
In order to conduct business with the County of Fresno (hereinafter referred to as “County”),
members of a contractor’s board of directors (hereinafter referred to as “County Contractor”),
must disclose any self-dealing transactions that they are a party to while providing goods,
performing services, or both for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and which
one or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing the disclosure form.
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to
the County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Codes.
(5) Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
Form provided on following page.
SELF-DEALING TRANSACTION DISCLOSURE FORM
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations
Code 5233 (a)
(5) Authorized Signature
Signature: Date: