HomeMy WebLinkAboutC-4117 - PSA for Grease Inspection and Best Management Practices Program# 0 C-4111
PROFESSIONAL SERVICES AGREEMENT WITH
ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES FOR
GREASE INSPECTION AND BEST MANAGEMENT PRACTICES PROGRAM
THIS AGREEMENT is made and entered into as of this,2Z4day of September, 2008,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and Jon C. Kinley, doing business as (DBA) Environmental Compliance
Inspection Services (ECIS), an individual, whose address is 12 Via Torre, Rancho
Santa Margarita, California, 92688 ( "Consultant "), and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to cant' on its business
as it is now being conducted under the statutes of the State of California
and the Charter of City.
B. City is planning to continue a City -wide Grease Inspection and Best
Management Practices Program.
C. City desires to engage Consultant to inspect all Food Service
Establishments (FSE's) in the City to ascertain compliance with the State
wide requirements to eliminate Sanitary Sewer Overflows (SSO's) related
to grease and implementing Best Management Practices (BMP's) for the
FSE's to follow ( "Project ").
D. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this
Agreement.
E. The principal member of Consultant for purposes of Project shall be Jon
C. Kinley.
F. City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and
desires to retain Consultant to render professional services under the
terms and conditions set forth in this Agreement.
G. City recognizes that the number of FSE's present in the City will fluctuate
throughout the course of the term contemplated by this Agreement.
Therefore, the City has determined that it will pay Consultant on a per -
inspection basis for grease trap control device and Best Management
Practices inspections, and will pay the Consultant by the hour for an
undetermined number of presentations to Council and other relevant
groups.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the _ day of September, 2008, unless terminated earlier as set forth
herein. City shall have the option to extend the contract for two additional years.
2. SERVICES TO BE PERFORMED
Consultant shall perform all the services described in the Scope of Services
attached hereto as Exhibit A and incorporated herein by reference. The City may
elect to delete certain tasks of the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due
to causes beyond Consultant's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of
this Section and the billing rates detailed in Exhibit B and incorporated herein by
reference. Consultant's compensation for work performed in accordance with this
Agreement, including all reimbursable items, shall be billed at Twenty Dollars
and no1100 ($20) per inspection point for FSE's with Grease Control Devices,
and One Hundred Dollars and no /100 ($100) per FSE for Grease Best
Management Practice Program Inspections performed annually. Consultant shall
be paid Seventy Five Dollars and no1100 ($75) per hour for any meetings City
asks Consultant to attend pertaining to City's Fats, Oils and Grease (FOG)
Program.
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The actual total cost will be dependent on the total number of FSEs operating
within the City at the time of each inspection, and actual number and length of
meetings the City asks Consultant to attend. Due to the continually fluctuating
number of FSE sites operating within the City, the total actual cost cannot be
accurately estimated at the time of this Agreement's execution. The total
compensation per year shall not exceed Seventy -Eight Thousand Four
Hundred Eighty Dollars and no /100 ($78,480). No billing rate changes shall be
made during the term of this Agreement without the prior written approval of
City.
4.1 Consultant shall submit invoices to City describing the work performed.
Consultant's bills shall include the name of the person who performed the
work, a brief description of the services performed and /or the specific task
in the Scope of Services to which it relates, the date the services were
performed, and a description of any reimbursable expenditures. City shall
pay Consultant no later than thirty (30) days after approval of the invoice
by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
advance by City. Unless otherwise approved, such costs shall be limited
and include nothing more than the following costs incurred by Consultant:
A. Actual costs and/or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated JON C. KINLEY to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
If Consultant is performing inspection or construction management services for
City, the Project Manager and any other assigned staff shall be equipped with a
Nextel Pius type cellular /direct connect unit to communicate with City staff.
Consultant's Nextel Direct Connect I.D. number will be provided to City to be
programmed into City Nextel units, and vice versa.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. TERRESA
MORITZ shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or her authorized
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representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a mannercommensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by the City,
nor have any contractual relationship with the City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license during
the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
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and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship or materials and/or design defects [if the design originated with
Consultant]) or Consultant's presence or activities conducted on the Project
(including the negligent and/or willful acts, errors and /or omissions of Consultant,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
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13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
L Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
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ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) written notice has been
received by City.
F, Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the Consultant
under this Agreement will be permitted only with the express written consent of
City. Consultant shall not subcontract any portion of the work to be performed
under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
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Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
Not applicable to this contract with this Consultant.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his/her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
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Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided.
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All notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
City of Newport Beach
Utilities Department
Attn: Terresa Moritz
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3013
Fax: 949 - 646 -5204
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
ECIS
Attn: Jon C. Kinley
12 Via Torre
Rancho Santa Margarita, CA 92688
Phone /Fax: 949 - 888 -6536
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft
or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all
work prepared by Consultant shall conform to applicable City, county, state and
federal laws, rules, regulations and permit requirements and be subject to approval
of the Project Administrator and City.
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30. WAIVER
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A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
vim-- C
City Attorney
for the City of Newport Beach
ATTEST:
By: QV
LaVonne Harkless,
City Clerk
Attachments
Rev: 082108/tam
Exhibit A — Scope of
CITY OF N PORT B AC ,
A Mun' &nal d6Dora ion A
By:
Mayo
for the City of Newport Beach
CONSULTANT:
Jon, . Kinley
I S("- - ,/
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ECIS
ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES
SOURCE CONTROL SOLUTIONS
Date: 8 -18 -08
To: Terresa Moritz / Administrative Analyst / City of Newport Beach
Re: ECIS Source Control Inspections Program Proposal for City of Newport Beach
Dear Terresa:
Per our recent discussion, here is the proposal for ECIS to implement a Source Control Program for the City
of Newport Beach (CNB). The program will consist of Grease Control Device Inspections (GCDI's) every
three months and an annual Grease Best Management Practices (GBMP) inspection. This proposal will also
include a fee schedule for special inspections such as Post SSO inspections.
GCDI'S: GREASE CONTROL DEVICE INSPECTIONS
INSPECTION FREQUENCY.• ECIS proposes to inspect all Grease Interceptors and Grease Traps
within CNB sewer service area every 3 months, as is currently in place.
INSPECTION S.O.P.: ECIS proposes to perform the following minimum at all inspections:
1. Contact FSE Owner/Manager.
2. Determine capacity and condition of grease interceptor /trap and record results.
3. Observe recent pumping manifests and or receipts - record on database.
4. Inform customer of all results and/or actions.
5. Issuance and follow up of notice of non - compliance (NON) if necessary.
DATABASE: ECIS proposes to gather, maintain, and provide a complete Excel database of all FSE's
which do and/or do not discharge wastewater containing fats, Oil or Grease (FOG) into the sewer collection
system. This database will include, but is not limited to, the following information:
1. Name - location of establishment.
12 VIA TORRE • RANCHO SANTA MARGARITA CA, 92688 • PHONEIFAX: (949) 888 - 6536 • EMAIL:j4in1ey@ecisg1oW com
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ECIS
2. Property owner, manager, contacts person name(s), and phone number(s).
3. Grease interceptor /trap location, number of inspection points, and volume in gallons.
4. Date of inspection, most recent pumping date, and condition of interceptor /trap.
5. Waste hauler names, addresses, and phone numbers.
6. NON- issuance date(s), recheck dates, and results as well as any /all relevant information.
RECORDS. ECIS proposes to keep all written records and all computer files/discs for a minimum of 3 years.
All records will be made available to CNB at all times, and will be turned over to CNB after the 3 year period.
ECIS proposes to supply electronically, an updated copy of the Excel database to CNB within two weeks of the
end date of each inspection run.
EDUCATIONAL MATERMLS I DOCUMENTATION: ECIS proposes to provide all dischargers and/or
contractors, with all relevant documents pertaining to CNB sewer ordinance / FOG Program requirements. These
documents shall be drafted, approved, and supplied by CNB. All pictures, video, paperwork, etc., shall be made
available to CNB at all times.
NOTIFICATION PROCEDURE. ECIS proposes to notify all dischargers found to be in noncompliance, or
subject to notice of violation, as well as how to re-obtain compliance and within what time frame. ECIS does not
provide any form of legal enforcement or take part in any form of city enforcement action(s), unless specifically
authorized by CNB to do so. All legal enforcement and actions taken against any discharger by CNB after notice
of non - compliance procedures have been fulfilled by ECIS will be the sole responsibility of CNB. ECIS proposes
to cooperate in full with CNB in all matters regarding possible enforcement action(s) and other general matters
regarding CNB Water Quality and/or sewer ordinance requirements.
CONSULTING FEES. ECIS proposes to charge Seventy -Five (75) dollars per hour for all consultation.
POST SSOI SPEML INSPECTIONS. ECIS proposes to charge One Hundred (100) dollars for all Post
SSO inspections made on behalf of the City. This inspection will be made only at the request of the City and shall
be performed in the same manner as previous Post SSO inspections.
GCDI FEE. ECIS proposes to charge CNB at a rate of Twenty (20) dollars per inspection point. An inspection
point is defined as any opening into the grease interceptor or grease trap, designed for providing access to or
obtaining a sample(s).
PROGRAM COST ESTIMATION. Using the current number of 380 FSE's and 449 Inspection Points
(figures from Jan-2008 database), ECIS estimates the total cost for 4 annual GCDI's will be approx. $35,920 (449
lids x $20per lid x 4). Naturally, this amount may increase /decrease as new FSE's are added or subtracted.
12 VIA TORRE • RANCHO SANTA MARGARITA CA, 92688 • PHONE/FAX: (949)888-6536- EMAIL:gAinleY@e 1 globaLcom
ECIS
GBMP'S: GREASE BEST MANAGEMENT PRACTICES INSPECTIONS
INSPECTION FREQUENCY.- ECIS proposes to perform on -site, Grease Best Management Practices
(GBMP's) inspections at all FSE's listed currently, or in the future, within the CNB Source Control Program
database, on an annual basis. ECIS proposes to inspect each FSE a total of two times, the initial inspection and
then the return inspection. At the initial inspection each FSE will receive all applicable Grease BMP Program
information. Each FSE will then have at least 30 calendar days to obtain compliance with the program. If
compliance is not obtained by the FSE after the second inspection, ECIS will notify CNB of all such FSE's, along
with all relevant information including the reason(s) for the issuance of the NON.
INSPECTIONS. O.P.: ECIS proposes to perform these inspections in accordance with all criteria as outlined
in the CNB GREASE CONTROL BEST MANAGEMENT PRACTICES INSPECTION REPORT. This
inspection report is to be supplied to ECIS by CNB.
ECIS proposes to inspect for the following at these inspections: (1) Removal of Garbage Grinder (2) Inspect
Grease Collection Maintenance logs and Employee Training logs (3) Inspect for installation and maintenance of
all Drain Screens (4) Inspect to ensure Food Waste BMP's are followed (5) Inspect for Emergency Spill Materials
or Spill Response Kit (6) Inspect to ensure Grease BMP poster(s) are located in approved areas.
NOTIFICATION PROCEDURE: ECIS proposes to inform and give written notification of all instances of
Non - Compliance to the affected FSE, and how to obtain compliance, as described within the GREASE
CONTROL BEST MANAGEMENT PRACTICES INSPECTION REPORT.
ECIS proposes to inform CNB of all FSE's found to be in Non - Compliance, with all enforcement procedures
beyond the established notification of non - compliance procedure(s) by ECIS, to be CNB responsibility.
COMPLIANCE OBTAINMENT. All FSE's in non - compliance will be given at least 30 days to obtain
compliance for any /all instance(s) of non - compliance.
GBMP FEE: ECIS proposes to charge CNB a fee of $ 70.00 per FSE inspected. All return inspections due to
non - compliance will carry a fee of $70.00 per FSE, per visit.
EDUCATIONAL MATERLALS /DOCUMENTATION: ECIS proposes to distribute all applicable and
relevant material related to the program to all known and/or affected FSE's at the time of the inspections.
DATABASE: ECIS proposes to include all information relevant to the program on the same Excel database as
the Grease Interceptorffrap inspections. This information will be located within a separate worksheet labeled
"GBMP's ".
ECIS proposes to supply electronically, an updated copy of the Excel database to CNB within two weeks of the
end date of each inspection run.
PROGRAM COST ESTIMATION. Using the estimated number of 306 FSE's (Jan 2008) subject to
inspection, (380 TOTAL FSE's minus 74 Exempt FSE's) estimated annual cost of Grease BMP Inspection
Program is $42,560 (304 x $70 x 2). This price does not reflect any return inspections beyond the two inspections
ECIS will perform per the contract.
12 VIA TORRE • RANCHO SANTA MARGARITA CA, 92688 • PHONE/FAXr (949)888-6536- EMA1L ykm1ey@e isg1abaLWm
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
17/
�Ua.�oo
Agenda Item No. s
September 23, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Utilities Department
Terresa Moritz, Administrative Analyst, 949 - 644 -3013
tmodtz@city.newport-beach.ca.us
SUBJECT: Professional Services Agreement with Environmental Compliance
Inspection Services for Grease Interceptor Inspections and Grease
Best Management Practices Program Inspections
ISSUE:
Should the City enter into an agreement with Environmental Compliance Inspection
Services to conduct specialized "best management practice" (BMP) training /inspection
for restaurants and other food service establishments (FSEs) and to inspect existing
grease control devices.
RECOMMENDATION:
1. Approve Professional Services Agreement with Environmental Compliance
Inspection Services (ECIS) for the contract price of $78,480 and authorize the Mayor
and the City Clerk to execute the agreement.
2. Adopt Budget Amendment # BA- in the amount of $40,000 (from the wastewater
enterprise system reserve to the Utilities' Grease Control Device Inspections
account).
DISCUSSION:
Background:
The State Water Resources Control Board ( SWRCB) adopted a state -wide order in
2006 to reduce Sanitary Sewer Overflows (SSOs), as part of the order directed each
City to come up with approved BMPs to prevent all SSOs. To ensure compliance with
this SWRCB Omer the City developed a restaurant and food service establishment -
related grease control BMP training and grease interceptor inspection program that
• PSA for GreasRontrol & BMP Inspections '
September 23, 2008
Page 2
must be conducted at approximately 380 food service establishments (FSEs) within the
City on an annual basis. At a minimum the SWRCB mandated inspection requirements
at each of the 380 FTEs include the following items:
• 4x annual inspections of grease interceptor or grease trap maintenance
1x annual education, training and inspection relating to grease control BMPs,
including written notification when an FSE is in non - compliance with City
ordinances
• Gather and maintain a complete database of all FSE inspection findings
Staff issued a Request for Qualifications (RFQ) to firms with qualifications to perform
the general scope;:.of work as described above. Two firms responded to the RFQ. Of
the two firms, staff believes that ECIS is most qualified to perform these required
specialized inspection /training services as further detailed in the attached detailed
scope of services. Furthermore, staff has been very satisfied with ECIS in providing
these inspection services for the City under their previous three year contract term.
Environmental Review:
No environmental review is required for the professional services associated with this
report.
Funding Availability:
Funding is available in account number 5600 -8159 (Grease Control Device Inspections)
for the Grease Inspections and BMP Inspections and Training in the amount of $39,925.
Attached is a budget amendment in the amount of $40,000 to fund the contract.
Attachments: Professional Services Agreement
ECIS Proposal
Budget Amendment
Submitted
Utilities Director
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E
PROFESSIONAL SERVICES AGREEMENT WITH
ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES FOR
GREASE INSPECTION AND BEST MANAGEMENT PRACTICES PROGRAM
THIS AGREEMENT is made and entered into as of this day of September, 2008,
by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "),
and Jon C. Kinley, doing business as (DBA) Environmental Compliance
Inspection Services (ECIS), an individual, whose address is 12 Via Torre, Rancho
Santa Margarita, California, 92688 ( "Consultant "), and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business
as it is now being conducted under the statutes of the State of California
and the Charter of City.
B. City is planning to continue a City -wide Grease Inspection and Best
Management Practices Program.
C. City desires to engage Consultant to inspect all Food Service
Establishments (FSE's) in the City to ascertain compliance with the State
wide requirements to eliminate Sanitary Sewer Overflows (SSO's) related
to grease and implementing Best Management Practices (BMP's) for the
FSE's to follow ( "Project ").
D. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this
Agreement.
E. The principal member of Consultant for purposes of Project shall be Jon
C. Kinley.
F. City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and
desires to retain Consultant to render professional services under the
terms and conditions set forth in this Agreement.
G. City recognizes that the number of FSE's present in the City will fluctuate
throughout the course of the term contemplated by this Agreement.
Therefore, the City has determined that it will pay Consultant on a per -
inspection basis for grease trap control device and Best Management
Practices inspections, and will pay the Consultant by the hour for an
undetermined number of presentations to Council and other relevant
groups.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the _ day of September, 2008, unless terminated earlier as set forth
herein. City shall have the option to extend the contract for two additional years.
2. SERVICES TO BE PERFORMED
Consultant shall perform all the services described in the Scope of Services
attached hereto as Exhibit A and incorporated herein by reference. The City may
elect to delete certain tasks of the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
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Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due
to causes beyond Consultant's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand- delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of
this Section and the billing rates detailed in Exhibit B and incorporated herein by
reference. Consultant's compensation for work performed in accordance with this
Agreement, including all reimbursable items, shall be billed at Twenty Dollars
and no /100 ($20) per inspection point for FSE's with Grease Control Devices,
and One Hundred Dollars and no /100 ($100) per FSE for Grease Best
Management Practice Program Inspections performed annually. Consultant shall
be paid Seventy Five Dollars and no /100 ($75) per hour for any meetings City
asks Consultant to attend pertaining to City's Fats, Oils and Grease (FOG)
Program.
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The actual total cost will be dependent on the total number of FSEs operating
within the City at the time of each inspection, and actual number and length of
meetings the City asks Consultant to attend. Due to the continually fluctuating
number of FSE sites operating within the City, the total actual cost cannot be
accurately estimated at the time of this Agreement's execution. The total
compensation per year shall not exceed Seventy -Eight Thousand Four
Hundred Eighty Dollars and no /100 ($78,480). No billing rate changes shall be
made during the term of this Agreement without the prior written approval of
City.
4.1 Consultant shall submit invoices to City describing the work performed.
Consultant's bills shall include the name of the person who performed the
work, a brief description of the services performed and /or the specific task
in the Scope of Services to which it relates, the date the services were
performed, and a description of any reimbursable expenditures. City shall
pay Consultant no later than Harty (30) days after approval of the invoice
by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
advance by City. Unless otherwise approved, such costs shall be limited
and include nothing more than the following costs incurred by Consultant:
A. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated JON C. KINLEY to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
If Consultant is performing inspection or construction management services for
City, the Project Manager and any other assigned staff shall be equipped with a
Nextel Plus type cellular /direct connect unit to communicate with City staff.
Consultant's Nextel Direct Connect I.D. number will be provided to City to be
programmed into City Nextel units, and vice versa.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. TERRESA
MORITZ shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or her authorized
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representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by the City,
nor have any contractual relationship with the City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license during
the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies;
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
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and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement (including, without limitation, defects in
workmanship or materials and /or design defects [if the design originated with
Consultant]) or Consultant's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and /or omissions of Consultant,
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on orto enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitatid?F' bpon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
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13. PROGRESS
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Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
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ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
.injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.:
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as. respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days (10 calendar days written
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notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontra,vied out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership orjoint- venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the Consultant
under this Agreement will be permitted only with the express written consent of
City. Consultant shall not subcontract any portion of the work to be performed
under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
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Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
Not applicable to this contract with this Consultant.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Con sultant'.cepresents his /her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
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Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his/her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and/or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act'), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided.
28.
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All notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
City of Newport Beach
Utilities Department
Attn: Terresa Moritz
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949- 644 -3013
Fax: 949 - 646 -5204
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
ECIS
Attn: Jon C. Kinley
:12 Via Torre
Rancho Santa Margarita, CA 92688
Phone/Fax: 949-888-6536
TERMINATION
In the event that either, party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft
or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all
work prepared by Consultant shall conform to applicable City, county, state and
federal laws, rules, regulations and permit requirements and be subject to approval
of the Project Administrator and City.
30. WAIVER
E
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are. any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by. a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
0
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
C ti y Attorney
for the City of Newport Beach
ATTEST:
0
LaVonne Harkless,
City Clerk
Attachments: Exhibit A — Scope of Services
Rev: 082108/tam
CITY OF NEWPORT BEACH,
A Municipal Corporation
Mayor
for the City of Newport Beach
CONSULTANT:
By. 4 C, //-- = ---
Jon . Kinley
IS
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ECIS
ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES
SOURCE CONTROL SOLUTIONS
Date: 8 -18 -08
To: Terresa Moritz / Administrative Analyst/ City of Newport Beach
Re: ECIS Source Control Inspections Program Proposal for City of Newport Beach
Dear Terresa:
Per our recent discussion, here is the proposal for ECIS to implement a Source Control Program_ for the City
of Newport Beach (CNB). The program will consist of Grease Control Device Inspections (GCBPs) every
three months and an annual Grease Best Management Practices (GBMP) inspection. This proposal will also
include a fee schedule for special inspections such as Post SSO inspections.
I_ GCDPS: GREASE CONTROL DEVICE INSPECTIONS I
INSPECTIONFREOUENCY: ECIS proposes to inspect all Grease Interceptors and Grease Traps
within CNB sewer service area every 3 months, as is currently in place.
INSPECTIONS.O.P.: ECIS proposes to perform the following minimum at all inspections:
1. Contact FSE Owner/Manager.
2. Determine capacity and condition of grease interceptor /trap and record results.
3. Observe recent pumping manifests and or receipts - record on database.
4. Inform customer of all results and/or actions.
5. Issuance and follow up of notice of non - compliance (NON) if necessary.
DATABASE: ECIS proposes to gather, maintain, and provide a complete Excel database of all FSE's
which do and/or do not discharge wastewater containing fats, Oil or Grease (FOG) into the sewer collection
system. This database will include, but is not limited to, the following information:
1. Name- location of establishment.
12 VIA TORRE • RANCHO SANTA MARGARITA CA. 92688 • PHONEIFAX: (949) 888 - 036 • EMAIL:jldn1eAecisg1abaLmm
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APPA
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ECIS
2. Property owner, manager, contacts person name(s), and phone number(s).
3. Grease interceptorhrap location, number of inspection points, and volume in gallons.
4. Date of inspection, most recent pumping date, and condition of interceptor/trap-
5. Waste hauler names, addresses, and phone numbers.
6. NON - issuance date(s), recheck dates, and results as well as any /all relevant information.
RECORDS: ECIS proposes to keep all written records and all computer files/discs for a minimum of 3 years.
All records will be made available to 6 at all times, and will be turned over to CNB after the 3 year period.
ECIS proposes to supply electronically, an updated copy of the Excel database to CNB within two weeks of the
end date of each inspection run.
EDUCATIONAL MATERIALS /DOCUMENTATION: ECIS proposes to provide all dischargers and/or
contractors, with all relevant documents pertaining to CNB sewer ordinance / FOG Program requirements. These
documents shall be drafted, approved, and supplied by CNB. All pictures, video, paperwork, etc., shall be made
available to CNB at all times.
NOTIFICATIONPROCEDURE. ECIS proposes to notify all dischargers found to be in noncompliance, or
subject to notice of violation, as well as how to re- obtain compliance and within what time frame. ECIS does not
provide any form of legal enforcement or take part in any form of city enforcement action(s), unless specifically
authorized by CNB to do so. All legal enforcement and actions taken against any discharger by CNB after notice
of non - compliance procedures have been fulfilled by ECIS will be the sole responsibility of CNB. ECIS proposes
to cooperate in full with CNB in all matters regarding possible enforcement action(s) and other general matters
regarding CNB Water Quality and/or sewer ordinance requirements.
CONSULTING FEES: ECIS proposes to charge Seventy -Five (75) dollars per hour for all consultation.
POSTSSOISPECUL INSPECTIONS: ECIS proposes to charge One Hundred (100) dollars for all Post
SSO inspections made on behalf of the City. This inspection will be made only at the request of the City and shall
be perforated in the same manner as previous Post SSO inspections.
GCDI FEE: ECIS proposes to charge CNB at a rate of Twenty (20) dollars per inspection point. An inspection
point is defined as any opening into the grease interceptor or grease trap, designed for providing access to or
obtaining a sample(s).
PROGRAM COST ESTIMATION. Using the current number of 380 FSE's and 449 Inspection Points
(figures from Jan-2008 database), ECIS estimates the total cost for 4 annual GCDI's will be approx. $35,920 (449
lids x $20per lid x 4). Naturally, this amount may increase/decrease as new FSE's are added or subtracted.
12 VIA TORRE • RANCHO SANTA MARGARITA G4,92688 • PHONElFAX (949)888-6536, EMAIL.yldnley@ecisglobal.com
AVA
ECIS
GBMP'S: GREASE BEST MANAGEMENT PRACTICES INSPECTIONS
INSPECTIONFREOUENCY.• ECIS proposes to perform on -site, Grease Best Management Practices
(GBMP's) inspections at all FSE's listed currently, or in the future, within the CNB Source Control Program
database, on an annual basis. ECIS proposes to inspect each FSE a total of two times, the initial inspection and
then the return inspection. At the initial inspection each FSE will receive all applicable Grease BMP Program
information. Each FSE will then have at least 30 calendar days to obtain compliance with the program. If
compliance is not obtained by the FSE after the second inspection, ECIS will notify CNB of all such FSE's, along
with all relevant information including the reason(s) for the issuance of the NON.
INSPECTIONS. O.P.: ECIS proposes to perform these inspections in accordance with all criteria as outlined
in the CNB GREASE CONTROL BEST MANAGEMENT PRACTICES INSPECTIONREPORT. This
inspection report is to be supplied to ECIS by CNB.
ECIS proposes to inspect for the following at these inspections: (1) Removal of Garbage Grinder (2) Inspect
Grease Collection Maintenance logs and Employee Training logs (3) Inspect for installation and maintenance of
all Drain Screens (4) Inspect to ensure Food Waste BMP's are followed (5) Inspect for Emergency Spill Materials
or Spill Response Kit (6) Inspect to ensure Grease BMP poster(s) are located in approved areas.
NOTIFICATION PROCEDURE: ECIS proposes to inform and give written notification of all instances of
Non - Compliance to the affected FSE, and how to obtain compliance, as described within the GREASE
CONTROL BEST MANAGEMENT PRACTICES INSPECTION REPORT.
ECIS proposes to inform CNB of all FSE's found to be in Non - Compliance, with all enforcement procedures
beyond the established notification of non - compliance procedure(s) by ECIS, to be CNB responsibility.
COMPLIANCE OBTAINMENT. All FSE's in non - compliance will be given at least 30 days to obtain
compliance for any /all instance(s) of non - compliance.
GBMP FEE: ECIS proposes to charge CNB a fee of $ 70.00 per FSE inspected. Ali return inspections due to
non - compliance will carry a fee of $70.00 per FSE, per visit.
EDUCATIONAL MATERIALS /DOCUMENTATION: ECIS proposes to distribute all applicable and
relevant material related to the program to all known and/or affected FSE's at the time of the inspections.
DATABASE: ECIS proposes to include all information relevant to the program on the same Excel database as
the Grease Interceptor/Trap inspections. This information will be located within a separate worksheet labeled
"GBMP's ".
ECIS proposes to supply electronically, an updated copy of the Excel database to CNB within two weeks of the
end date of each inspection run.
PROGRAM COST ESTIMATION: Using the estimated number of 306 FSE's (Jan 2008) subject to
inspection, (380 TOTAL FSE's minus 74 Exempt FSE's) estimated annual cost of Grease BMP Inspection
Program is $42,560 (304 x $70 x 2). This price does not reflect any return inspections beyond the two inspections
ECIS will perform per the contract.
12 VIA TORRE • R4NCHO SANTA MARGARITA C4,92688 • PHONUFAX.' (949)888-6536- EMAILJhWey@e isglobaLcom
M: ;
Ity of Newport BeaC* NO. BA- 09BA -012
BUDGET AMENDMENT
2008 -09 AMOUNT: $ao,000.00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
X Increase Expenditure Appropriations AND AX Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
HX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from Wastewater unappropriated fund balance for a PSA with Environmental
Compliance Inspection Services for grease inspections and best rrl;striagement practices program.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account Description
560 3605 Wastewater Fund - Fund Balance
REVENUE ESTIMATES (3601)
Fund /Division Account Description
Amount
Debit Credit
$40,000.00
EXPENDITURE APPROPRIATIONS (3603)
Description
Division Number 5600 Utilities - Wastewater
Account Number 8159 Grease Control Device Inspections $40,000.00
Division Number
Account Number
Division Number
Account Number
Division Number
Account Number
Automatic System Entry.
Signed:
Fi ncial Approval: Administrativ ervices Director Date
Signed: �Y,
Administrative Appr al: City Manager bate
Signed:
City Council Approval: City Clerk Date