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HomeMy WebLinkAboutC-4712 - PSA for Grease Control Device Inspection Program, Grease Control Device Plan Review Services and Post Sanitary Sewer Overflow Inspections4170- PROFESSIONAL SERVICES AGREEMENT WITH ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES FOR GREASE CONTROL DEVICE INSPECTION PROGRAM, GREASE CONTROL DEVICE PLAN REVIEW SERVICES AND POST SANITARY SEWER OVERFLOW INSPECTIONS THIS AGREEMENT OR PROF.F.UIONAL SERVICES ( "Agreement') is made and entered into as of this JS% of I 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Cor oration ( "City "), and Jon C. Kinley, doing business as (DBA) Environmental Compliance Inspection Services (ECIS), asole proprietor ( "Consultant'), whose address is 26 Dauphin, Dana Point, California 92629 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 its Fats, Oils and Grease ( "FOG') Source Control Program including Quarterly Grease Control Device Inspections, Grease Control Device Review Check Services and Post Sanitary Sewer Overflow Inspections as required by the State General Waste Discharge Requirements (GWDR). C. City desires to engage Consultant to provide FOG Inspections, plan review services and post SSO Inspections per the GWDR ( "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. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The initial term of this Agreement shall extend to January 30, 2012, with the option to automatically extend the term of the Agreement for two (2) additional one (1) year terms to automatically commence upon the expiration of the initial term or any extended term, unless City notifies Consultant in writing at least 30 days before the end of the initial term or any extended term of the City's intent to terminate the agreement with or without cause. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). 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 either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty -Nine Thousand Six Hundred and Fifty Dollars and no /100 ($39,650.00) per year without prior written authorization from City. 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 the preceding period. 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, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. ECIS Professional Services Agreement Page 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 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. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 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. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. Ed Burt or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized 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 ECIS Professional Services Agreement Page 3 materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 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 City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is 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, volunteers, 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 and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors ECIS Professional Services Agreement Page 4 and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, 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. 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 ECIS Professional Services Agreement Page 5 of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant'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 (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ECIS Professional Services Agreement Page 6 H. 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, blanket contractual liability. 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 accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. ECIS Professional Services Agreement e Page 7 iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. 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 ECIS Professional Services Agreement Page 8 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 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. 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. 19. 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. 20. 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. 21. 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. 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. 22. 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 ECIS Professional Services Agreement Page 9 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 the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Ed Burt, Utilities Operations Manager Municipal Operations Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949/718 -3432 Fax: 949/646 -5204 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Jon Kinley ECIS 26 Dauphin Dana Point, CA 92629 Phone: 949/279 -6578 Fax: 949/481 -8826 ECIS Professional Services Agreement Page 10 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. 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, and thereafter diligently take steps to cure the 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. 28. 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. 29. WAIVER 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. 30. 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 ECIS Professional Services Agreement Page 11 of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. 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. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 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 LANK 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. ECIS Professional Services Agreement Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: Leonie Mulvihill I Assistant City Attorney l`I ATTEST: By: UW/N WV Leilani I. Brown City Clerk Attachments: document2 7.20.10 G� c CITY OF NEWPORT BEACH, A California municipal c rporation By: Michael F. Henn Mayor CONSULTANT: Jon C. Kinley, DBA: Environmental Compliance Inspection Services, a sole proprietor B •y —=� - JAri C. 'nley Owner Exhibit A - ECIS Proposal ECIS Professional Services Agreement Page 13 ECIS ENVIRONMENTAL COMPLIANCE INSPECTIONSER VICES Date: 10 -11 -10 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, a fee for FSE Grease Control Device Installation Plan Check and a fee for special inspections such as Post Sanitary Sewer Overflow (SSO) inspections. v 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 andlor 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. 26 DAUPHIN • DANA POINT CA, 92629 • PHONE: (949) 279 -6578 - 6536 • EM91L:ecis@cox.net U� 2. Property owner, manager, contacts person name(s), and phone number(.r). 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. ECISproposes 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 I 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: ECISproposes to notes all dischargersfound to be in non - compliance, or subject to notice of violation, as well as how to re- obtain compliance and within what tune 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. ECISproposes 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 SSO /SPECIAL 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 sarnple(s). PROGRAM COST ESTIMATION. Using the current number of 387 FSE's and 475 Inspection Points figures from Sept 2010 database), ECIS estimates the total cost for 4 annual GCDFs will be approx. $38,000(475 lids x $20per lid x 4). Naturally, this amount may increase /decrease as new FSE's are added or subtracted. 26DAUPHIN• DANA POINT C4,92629 -PHONE: (949) 279- 6578 — 6536• EMAIL:ecis @coxxet L, FSE- GREASE CONTROL DEVICE INSTALLATIONPLAN CHECK ECIS proposes to perform plan review on all submittals pertaining to FSE's. Plan check services will be offered on all new construction, existing FSE remodels, tenant improvements or FSE transfers of ownership. All plan submittals shall be required to comply with the existing CNB Building Division Plan Submittal Requirements. ECISproposes to perform all plan review duties outside of the Building Department and CNB. ECIS staff can be available for a plan check meeting at the Building Department counter if the need arises. All other plan reviews will be performed at ECIS off ces. ECIS will provide all ECIS contact information to staff at City Building Department in order for staff to inform applicants, (see attached letter). ECIS will correspond directly with FSE owner(s), architects /engineers or other staffsubmitting plans. ECISproposes to inform applicant of all revisions required by noting corrections directly on submitted plan sheets. ECISproposes to send an approved set ofplans to CNB Building Department either in person or by next day carrier. ECISproposes to stamp all approved plan sheets with an ECIS "Approved" stamp. ECIS will stamp all unapproved plans with a "Not Approved" stamp. ECISproposes to offer on -site consultations at all FSE sites that may require afield visit with interestedparties to discuss installation requirements of Grease Control Devices. ECISproposes to charge the CNB a fee of $175 dollars per site visit. ECIS proposes to require all submittals to have the following basic minimum requirements All plans submitted by a registered/licensed architect/ engineer in the State of California, with Stamp. 2. Two sets of minimum 24x36 plans. 3. Site plan with FSE name, address, street name(s), North arrow, and show existing underground Utilities. 4. Plumbing plan ( "P" sheet(s)) with Grease Waste line(s) marked "GW ", and Sanitary Waste Lines marked "S ". 5. Plumbing vent and waste diagram including isometric. 6 Floor Plan with Kitchen equipment schedule- specifying which fixtures will drain to Grease Control Device. 7. City approved Grease Interceptor specification drawing copied onto submittal. 26DAUPHIN• DANA POINTCA,92629•PHONE: (949)279- 6578 -6536• EMAIL:ecisCcoxnet ECIS 8. Grease Interceptor /Grease Trap Manufacturer, size, make, GPM /flow rate, model number and proposed location of Grease Control Device shown on site plan or floor plan. 9. Uniform Plumbing Code sizing formula included on submittal showing sizing calculations (All Grease Interceptor installations shall require a minimum sized 750 gallon Grease Interceptor, maximum size is 2500 gallons). ECIS proposes to charge the CNB a per plan check fee of $225. This price includes all revisions necessary. ECIS proposes to include the CNB Building Department plan/project number on all invoices as well as FSE name and address. ECIS will not plan check any plans that do not have the City or Building Department Plan/Project number clearly shown on plans. GCDI —PLAN CHECK & POST SSO INSPECTIONS ANNUAL PROGRAM COST ESTIMATION: ECIS estimates the total annual cost to CNB to implement the GCDI Program, the FSE Grease Control Device Installation Plan Check Program and the Post SSO Inspections Program to be approximately $38, 000. This price does not include Post SSO inspections or Plan Check due to the unknown frequency of these inspections. ECIS recommends adding an additional $1,650 to account for an anticipated 3 annual Post SSO inspections at $100 per ($300), and 6 FSE -Plan Checks at $225 per ($1,350). Accounting for these additional inspections -ECIS estimates the total annual amount for every 3 month GCDI's, Plan Check and Post SSO inspections program to be $39,650. It is ECIS's pleasure assisting the City of Newport Beach in reaching it's goal of a safe and clean water environment. If you have any questions regarding the program or this proposal, please do not hesitate to contact me. Respectfully submitted, Jon C. Kinley President ECIS 26DAUPHIN • DANA POINTCA, 92629 • PHONE: (949) 279- 6578 — 6536 • EMAIL. :ecisGcox.net CITY OF NEWPORT BEACH i I g41 2,9 2011 CITY COUNCIL STAFF REPORT Agenda Im N16. ` ` - January 25, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Director, (949) 644 -3055, mharmon @newportbeachca.gov SUBJECT: Professional Services Agreement with Jon C. Kinley DBA Environmental Compliance Inspection Services for Grease Control Device Inspection Program, Grease Control Device Plan Review Services and Post Sanitary Sewer Overflow Inspections ISSUE: Staff is requesting approval of an agreement with Jon C. Kinley doing business as Environmental Compliance Inspection Services of Dana Point ( "ECIS ") to provide grease control device program services. RECOMMENDATION: Approve an agreement with ECIS for grease control device inspection program, plan review services and post sanitary sewer overflow inspection services for one (1) year with an.option of two (2) one -year extensions. DISCUSSION: Background: The State Water Quality Control Board (Board) adopted a state -wide order to reduce Sanitary Sewer Overflows (SSOs) and as part of the order directed each City to come up with approved Best Management Practices ( "BMPs ") to prevent all SSOs. Based on this requirement the City has worked with ECIS (who currently works with other municipalities and Sewer Agencies) to provide basic restaurant and food service establishment - related quarterly inspections and annual BMP training at all Food Service Establishments ( "FSEs "). These inspections will assist the City in meeting the State of California requirements and the Board's desire to eliminate SSOs. PSA for Grease Control Device Program January 25, 2011 Page 2 The Municipal Operations Department conducted a competitive RFQ process with firms •- - *nown ,to :- provide these types of services. After proposal review and panel meetings with the responsive firms, staff recommends retention of ECIS. The agreement will allow ECIS to provide professional services to the roughly 380 food service establishments in the city which will include the following items: • 4x annual inspections of grease control device maintenance; and • 1x annual education, training and inspection relating to grease control BMPs • As needed plan review and post SSO inspections Environmental Review: Staff recommends the City Council finds that taking action to the recommendations in this report is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Public Notice: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availability: Funding is available in account number 5600 -8159 (Grease Control Device Inspections) for the inspections and BMP program in the amount of $39,650. ;Alternatives: The alternative would be for the City to have staff do the inspections and training, which would require staff training or do nothing and be in violation of the State General Waste Discharge Requirements. P7ared (by: Ter a oritz, Admi' istrative n st Attachments: Professional Services Agreement ECIS Proposal Municipal Operations Director PROFESSIONAL SERVICES AGREEMENT WITH ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES FOR GREASE CONTROL DEVICE INSPECTION PROGRAM, GREASE CONTROL DEVICE PLAN REVIEW SERVICES AND POST SANITARY SEWER OVERFLOW INSPECTIONS THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this day of 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and Jon C. Kinley, doing business as (DBA) Environmental Compliance Inspection Services (ECIS), asole proprietor ( "Consultant "), whose address is 26 Dauphin, Dana Point, California 92629 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 its Fats, Oils and Grease ( "FOG ") Source Control Program including Quarterly Grease Control Device Inspections, Grease Control Device Review Check Services and Post Sanitary Sewer Overflow Inspections as required by the State General Waste Discharge Requirements (GWDR). C. City desires to engage Consultant to provide FOG Inspections, plan review services and post SSO Inspections per the GWDR ( "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. IOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The initial term of this Agreement shall extend to January 30, 2012, with the option to automatically extend the term of the Agreement for two (2) additional one (1) year terms to.automatically commence upon the expiration of the initial term or extended term, unless City notifies Consultant in writing at least 30 days before the end of the initial term or any extended term of the City's intent to terminate the agreement with or without cause. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Work" or "Services "). 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 either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable. items and subconsultant fees; shall not exceed. Thirty -Nine Thousand Six Hundred and Fifty Dollars and no 110.0 ($39,650.00) per year without prior written authorization from City. 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 the preceding period. 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, the number of hours spent on all Work , billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no. later than thirty (30) days after approval of the monthly invoice by City staff. ECIS Professional Services Agreement Page 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 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. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 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. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. Ed Burt or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized 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 ECIS Professional Services Agreement Page 3 materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 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 City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is 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, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claim's (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, atiorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement; any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors ECIS'Professional Services Agreement Page 4 and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, 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. 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 ECIS Professional Services Agreement Page 5 of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements. L Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant'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 (ten. (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ECIS Professional Services Agreement Page 6 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, blanket contractual liability. 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 accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. ECIS Professional Services Agreement Page 7 iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. 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 ECIS Professional Services Agreement Page 8 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 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. 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. 19.. 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. 20. 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. 21. 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. Consultant shall not discontinue Work as a result of such withholding g. 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. 22. 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 ECIS Professional Services Agreement Page 9 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 the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Ed Burt, Utilities Operations Manager Municipal Operations Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949/718 -3432 Fax: 949/646 -5204 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Jon Kinley ECIS 26 Dauphin Dana Point, CA 92629 Phone: 949/279 -6578 Fax: 949/481 -8826 ECIS Professional Services Agreement Page 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. 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, and thereafter diligently take steps to cure the 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. 28. COMPLIANCE WITH ALL LAMS 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. 29. WAIVER 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, covenantor condition contained herein, whether of the same or a different character. 30. 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 ECIS Professional Services Agreement Page 11 of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. 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. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 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, sec or age. ECIS Professional Services Agreement Page 12 IN WITNESS. WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A California municipal corporation B : 1Z /11 � U By: Leonie Mulvihill �� Michael F. Henn Assistant City Attorney t"� N' Mayor ATTEST: CONSULTANT: Jon C. Kinley, DBA: Environmental Compliance Inspection Services, a sole proprietor By: Leilani I. Brown Jon C. Kinley City Clerk Owner Attachments: Exhibit A — ECIS Proposal document2 7.20.10 ECIS Professional Services Agreement Page 13 EXHIMT "N' ECIS ENVIRONMENTAL COMPLIANCE INSPECTION SERVICES SOURCE CONTROL SOLUTIONS Date: 10 -11 -10 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 (CAT). The program will consist of Grease Control Device Inspections (GCDI's) every three months, a fee for FSE Grease Control Device Installation Plan Check and a fee for special inspections such as Post Sanitary Sewer Overflow (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. INSPECTIONS. O.P. ECIS proposes to perform the fallowing 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.. In customer of all results and/or actions. 5. Issuance andfollow up of notice of non-compliance (NON) ifnecessaty. 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. 26 DAUPHIN • DANA POINT CA, 92629 • PHONE: (949)279-6578-6536- EMAIL."ecis@cox.net rc.. All 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: ECISproposes 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. ECISproposes 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 /DOCUMENTATION• ECISproposes 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. ECISproposes to notes all dischargers found to be in non- compliance, 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 fditlled by ECIS will be the sole responsibility of CNB. ECISproposes 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: ECISproposes to charge Seventy-Five (75) dollars per hour for all consultation. POST SSO I SPECL4L INSPECTLONS ECISproposes to charge One Hundred (100) dollars for all Post . SSO inspections made on behalfofthe 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: ECISproposes 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). PROGRAMCOST ESTIMATION.• Using the current'number of 387FSE's and 475-1 pection Points. figures froth Sept 2010 database), ECIS estimates the total cost for 4 annual GCDI's will be approx. $38,000(475 lids x $20per lidx 4). Naturally, this amount may increase /decrease as new FSE's are added or subtracted. 26 DAUPHIN • DANA POINT CA, 92629 • PHONE: (949) 279 -6578 — 6536 • EMAIL: ecis @cox. net �i f ➢ FSE- GREASE CONTROL DEVICE INSTALLATIONPLAN CHECK ECISproposes to perform plan review on all submittals pertaining to FSE's. Plan check services will be offered on all new construction, existing FSE remodels, tenant improvements or FSE transfers of ownership. Allplan submittals shall be required to comply with the existing CNB Building Division Plan Submittal Requirements. ECIS proposes to perform all plan review duties outside of the Building Department and CNB. ECIS staff can be available for a plan check meeting at the Building Department counter if the need arises. All other plan reviews will be performed at ECIS offices. ECIS will provide all ECIS contact information to staff at City Building Department in order for staff to inform applicants, (see attached letter). ECIS will correspond directly with FSE owner(s), architects /engineers or other staff submitting plans. ECISproposes to inform applicant of all revisions required by noting corrections directly on submittedplan sheets. ECISproposes to send an approved set ofplans to CNB Building Department either in person or by next day carrier. ECISproposes to stamp all approved plan sheets with an ECIS "Approved" stamp. ECIS will stamp all unapproved plans with a "Not Approved" stamp. ECISproposes to offer on -site consultations at all FSE sites that may require afield visit with interested parties to discuss installation requirements of Grease Control Devices. ECISproposes to charge the CNB afee of $175 dollars per site visit. ECISproposes to require all submittals to have .the following basic minimum requirements. 1. All plans submitted by a registered/licensed architect/ engineer in the State of California, with Stamp. 2. Two sets of minimum 24x36 plans. 3. Site plan with FSE name, address, street name(s), North arrow, and show existing underground Utilities. 4. Plumbing plan (P "sheet(s)) with Grease Waste line(s) marked "GW ", and Sanitary Waste Lines marked "S ". 5. Plumbing vent and waste diagram including isometric. 6 Floor Plan with ;Kitchen equipment schedule- specifying which fixtures will drain to Grease Control Device. 7. City approved Grease Interceptor specification drawing copied onto submittal. 26 DAUPHIN • DANA POINT CA, 92629 • PHONE: (949)279-6578-6536- EMAIL: ecis&c ..net Lt l 8. Grease Interceptor/Grease Trap Manufacturer, size, make, GPWflow rate, model number and proposed location of Grease Control Device shown on site plan or floor plan. 9. Uniform Plumbing Code sizing formula included on submittal showing sizing calculations (All Grease Interceptor installations shall require a minimum sized 750 gallon Grease Interceptor, maximum size is 2500 gallons). ECIS proposes to charge the CNB a per plan check fee of $225. This price includes all revisions necessary. ECIS proposes to include the CNB Building Department plan /project number on all invoices as well as FSE name and address. ECIS will not plan check any plans that do not have the City or Building Department Plan/Project number clearly shown on plans. r. A —La iv c¢ rVOS3aVV Y01YCCLLUNSANNUALPROGRAMCOSTESTIMATION .• ECIS estimates the total annual cost to CNB to implement the GCDI Program, the FSE Grease Control Device Installation Plan Check Program and the Post SSO Inspections Program to be approximately $38, 000. This price does not include Post SSO inspections or Plan Check due to the unknown frequency of these inspections. ECIS recommends adding an additional $1,650 to accountfor an anticipated 3 annual Post SSO inspections at $100 per ($300), and 6 FSE -Plan Checks at $225 per ($1,350). Accounting for these additional inspections -ECIS estimates the total annual amount for every 3 month GCDI's, Plan Check and Post SSO inspections program to be $39,650. It is ECIS's pleasure assisting the City. of Newport Beach in reaching it's goal of a safe and clean water environment. Ifyou have any questions regarding the program or this proposal, please do not hesitate to contact me. Respectfully submitted, Jon C. Kinley President ECIS 26 DAUPHIN DANA POINT CA, 92629 • PHONE. (949) 279 -6578 - 6536 • EM,41L:ecis@cox.net