HomeMy WebLinkAboutC-4908 - PSA for Installation of Smart Irrigation ControllersAMENDMENT NO ONE TO
PROFESSIONAL SERVICES AGREEMENT
�j WITH VALLEY SOIL, INC. FOR
INSTALLATION OF SMART IRRIGATION CONTROLLERS
THIS AMENDMENT NO ONE TO AGREEMENT FOR PROI SSIONAL
SERVICES ( "Amendment No. One ") is made and entered into as of this ° (( _ day of
�) January, 2013 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a
California Municipal Corporation ( "City "), and Valley Soil, Inc., a California corporation
( "Consultant "), whose address is P.O. Box 890595, Temecula, CA 92589 and is made
with reference to the following:
RECITALS
A. On September 13, 2011, City and Consultant entered into a Professional
Services Agreement ( "Agreement') for the design and implementation of a
marketing outreach program for the installation of Smart Irrigation Controllers
( "Project').
B. City desires to enter into this Amendment No. One to reflect additional services
not included in the Agreement, to extend the term of the Agreement to
September 30, 2014, to increase the total compensation and to update insurance
requirements.
C. City and Consultant mutually desire to amend the Agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
Section 1 of the Agreement is amended in its entirety and replaced with the
following: The term of this Agreement shall commence on September 13, 2011, and
shall terminate on September 30, 2014 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of Work
dated January 10, 2013, attached hereto and incorporated herein by reference
( "Services" or "Work "). The City may elect to delete certain Services within the Scope of
Work at its sole discretion.
3. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates attached hereto as Exhibit B, and incorporated herein by reference.
Section 4 of the Agreement is amended in its entirety and replaced with the
following: 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 or Progress Payments Schedule attached hereto as Exhibit B 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 One Million Two Hundred Thirty Thousand Dollars and
OOt100 ($1,230,000.00) 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. INSURANCE
Section 14 of the Agreement is amended in its entirety and replaced with the
following: 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 or for other periods as specified in this
Agreement, policies of insurance of the type, amounts, terms and conditions described
in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by
reference.
1ZIL ZLIT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Valley Soil, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATS 10`Y'S OFFICE
Date:
in
Aaron C. Harp
City Attorney
ATTEST: � � '
Date:
By. 4a' ' .5"
Leilani I. Brown
City Clerk
,-:ei
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Keit Curry
Mayor
CONSULTANT: Valley Soil, Inc., a
California corpor tion
Date:
B r� J
y: �
Eric Anderson
President
Date: o? 1413
By: \4� - aiaA�
Terry AnArson
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Work
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Valley Soil, Inc. Page 3
EXHIBIT A
SCOPE OF WORK
Valley Soil, Inc. Page A -1
"?2; ' t ;84
Request for Updated Scope of Work
For the:
UVER- IRRIGATION REDUCTION PROGRAM
Date: Thursday, January 10, 2013
Update submitted electronically to:
Shane Burckle
Robert Stein
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Submitted by:
Valley Soil, Inc.
P. 0. Box 890598
Temecula, CA 92589
951 -767 -2215, office
888- 268 -1009, toll free
866- 729 -1784, fax
Contact: Eric Anderson,
President
ac-MgAf —Work
ol
,,
It is understood that as a C<ansultant/ Contractor / Z endar for the Over Irrigation Reduction Program
,Trogram) or referred to is the .Run<,ff Reduction Pn.;gram: Valley S<Al, hac shall be crwrdinating efforts
between hvo Districts; the City of Newport Bcach and the Irvine Ranch Fates District (collccti:ely referred
to : the District -r CN B for this Updatc), Valley Soil, Inc's (Valley Soiljl objectives in the end rue to reduce
irrigation waste water surd irrigation runoff by o6nining high water user data; prioritizing and ttargefing the
curt omers; develop and distribute mar'seti ng materials; contact the selected group; survey the sites. o[ata n
v.:xlvers of acceptamce; purchase product; from local vendors or as instructed; install, set up and program
qualified weather bused irrigatnn controllers and or with flow sensors/ master valves or install other
conservation devices as directed; document and report on all program settings, communication passwords,
websites and system operation functions to allow for multiple user view points or management; train
customers in the proper operations of the products; distribute and discuss operating manuals, cd's,
pr )gcamming charts, product vx arrantres, and support inform;rtic,n; distribute and discuss survey findings
and issues, additional conservation products or other helpful information; provide free limited call back
serv=ices for product issues ;and continuing training; document and record all findings in our online data
base; provide specific installation information in a City /District / IIW DOC and itfW -D approved format for
rub ate submittal; prepaare and submit reports or provide presentations per the timelines; complete the
project within the tunic frames and locations :et f. r by the Contract and the District.
It is understood that w750,000 of the x1,230,000 Proy7_u a finding has been used leaving a balance of
S to be ac:rilxble for the Customers of the CNB.
It is understood thatthe District may change the goals, specifics, products, funding or contract length.
Lnlcss modified by the C;itx of Nc -,xport Beach this Program should sunset at September 30, 2011
This shill be aaccomphshc:d b and within the t+snciinus of thc follacs.ing
o Continue w with the District's business standards to silhvv> us to perform the vc ork to CNB
specalcatsons,
� �.Ie c:t with I�astrict Reprcaentaei, e; t;: obt<un customer information:
Cust{ -mcr names, account number, addresses, phone numbers, 3 }ear
historical usala e, lot size, other specifics.
• Ls- the developed/ approved ta+-getcd marketing nvatcria :ls and preliminary customer packages
hioinghtutg'I`he District's/ hurdinw . cnts Ingo sand statement, Prtgt am's reduction goals and
methods of implementation; the Program's coasts to the customer; why the customer has been
selected to participate .end what benefits thL customer should obtain; explain inhere the funding
come, from; describe any tiered rate structures; provide the District's and Valley Soil's contact
information.
• Continue the entering of collcctt:d customer contact da:ca into our online data base to develop
trackir;g / reporting farms and statistics for our real time office and field reporting synchronization,
• Use the developed l abilit -, aiTer and consent form to present to and gather the customer's
signraturc.
• Prioritize and c m act selected customers by direct mil and then direct calling to schedule surrey
appointments. At least thr� c phone contact attempts shall be made. "Ihe District shall be notified on
non -re sponsec custom rs via our monthly data base reports.
FLU Tasking and Project Row:
• Present pr<sper identification and credentials, survey / evaluate sites to determine irrigation issucv ,
clocument irrigation valve specifies, dLcuss any Proanam or irrigation eligibility issues — manual
S, stfms, se r: irrigation : repairs needed, c sistuig WBIC's in we or preciously rebated; discuss the
re,isons for practicing water conscr ation, discus:i the sits irrigation issues, any tiered rate structure
questions; present, the approved W BIC's and flow sensors including what pr- ,ducts may did in
cdditional L:-atcr or energy conservation such as st,aidard zing large rotor nozzles, varialule frequency
drip e pump meat ors for the 1100 pool, and igtidscaped areas, 1.28 or 0.8 gpf toilets, faucet aerators,
In:v flocs- shover nozzles, efficient washers and dishwashers and high efficiency spray=/ rotor
nozzles Alsca discuss energy savings potents: Ts obtained by the reduction in water deli-,cry charges
or improved metivAs. Formulate and estimated return on investment for the products discussed for
commercial accounts.
• Present s, stem upgrada or repair information that may need to be done prior to Program product
instillation, provide "Ica, e behind" documentation for the customer and deliver a survey copy to
the Agency; accomplished by our real time reporting system and Drop Bogs.
• Present wrimtn District and Valley Soil contact infonreation including field and office contact names,
the toll frca true iber, other office numbers and mailing addresses, Encourage the customers to
contact the District or Valley Soil for any questions or concerns.
• Present, explaxin avid obtain c-ustomcr Signed «:giver/ consent forms, have the customer make a cop,,
or deliver the Signature via the Drop Boss, a copy shall be kept for our records and a scan or
electronic , ersion of the on nil shall be sent to the District via our data base.
• Contact the District :ltcpresentative if flocs• s(;nsors, master valves, central systems, 2 was
communication SX23ZC systems, high efficiency rotor head replacements, high efficiency nozzles, soil
moisture sensors, relay points, ancillary products or other conservation products requested to be
installed, or as directed.
• Schedule sin installation date.
• Pick up the, prcdurts from local cansers:rtion product" vendors.
• Deliver/ install WBIC's sand apprcti ca products; program the )XIIIC's, floe- scrosc r coefficients or
other products per manufacturer's and site specific survey cl ati .activ ^ate data or communication
products as necessary, establish any 2 way operation points, complete, all operational testing and
trainin�s, ,i ith the cuss )mcr; c?eli°,e r gall rsm;umu +ls; have the customer s=ign off on the cork; enter the
sign off and d•)cument.ation into the d.au b cse; recpdc the units according to established e -w ste
guidelines n: :u directed, Inoperafi =c WBIC's or product returns, shaall be documented per thu
manufacturer's imtr,icti+>ns and re- instilled at no cost to the C \B or Customer. Manufacturers have
,=Said to vs, =rr mty LI heir VTIC's for this Program at 5 years.
• Train and cd:catc the customers on the use .and programming of the WBIC, etc. Show the simple
:adjustment featim:s and cxplaain what the results are for each adjustment. Explain the consequences
of over adjusting; the controller program and that additional sprinkler adjustments, retrofits or
repairs may be needed to prow cant "flood irrig icing" areas and reducing runoff potentials by
establishing; better distribution uniformity* percmta <:us while maintuninghood plant vigor and
health.
• D3wcument all customer contact .ind progranuniag notes, heave a copy with the customer and
submit a cop; to the District: establish 2 vial c,� mmamcatxon protocols at tli ^ Dig trecrs Z,acawnn and
train S'affforx-ccssing the information, provi& additional training if needed or directed.
• Entcr customer contacts, prr pTimming, notes and other data, into our online data base.
• Forward reports acid data to the District as per the Contract timelin•as.
Cher- Watering Reduction Program Page 3
• Obtain from the District any furthi.r da.a th a requires additional tracking such -�Sa the customers
historical 1i atcr u � > .mcl combine, if requested, into the customers database to: track the ongoing
us,,.ge, to the current and past I-Ts for comparable reporting and results; track customer contacts by
what contcct wa -- made, what %vere the results, what scraces or foll:aw up was prop ided, what.
answers were aOven, ,ul-, it addition d a �sistunce na,q be prof ided and to offer the extended
rn,mufacturcrs and 1'Auy Se;il's customer —Lrranty.
• Provide; all information, documentation and updates to the District, formatted in a compatible form.
• Conduct follow -up or ntacts st needed or directed. Offer fiirther assistance, and or answer any
qu ,tions. Submit the surrey results to the District C_1, GM and OS shall set the meetings to be
attended by the I'S and P1f. Vail,y Soil shall pro, ide uninterrupted customer support for at least a 2
year period, 5 years may be granted, to ensure customer "buy in" to the conservation products or
methods. Vallcy= Suil is still in contact with customers and associations for projects completed over 5
-years ago.
• Track and monitor monthlpx.-ater use per customer as required. Provide customer results to the
District if required basing the comparisons on historical water use and LT weadwr data compared to
eurrentti ester use and BT weather data.
• Finalize data base information, fiicid notes, programming information, customer contacts, monitored
usage reports, documentation and present within the time frames to and set fords by the District as
requested,
• Maintain the ability to Tow custotn; rs to contact Valley Soil for 5 years, the length of the WBIC
product manufacturer's ,N arranti or as needed_
This updated Scope: ,�f wor'x is being submitted for the contusuance of the wcll received Over- Irrig, ion
Reduction Pr gram by Valley- Soil Inc as directed by the City of Newport Beach;
Eric iadez =an, T'eraiclwr Dae:
Over - Wafering Reduction Program Page 4
EXHIBIT B
SCHEDULE OF BILLING RATES
Valley Soil, Inc. Page B -1
7.1
14
al
It
I . INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1.1 Provision of 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, policies of insurance of the type
and amounts described below and in a form satisfactory to City. Consultant agrees to
provide insurance in accordance with requirements set forth here. If Consultant uses
existing coverage to comply and that coverage does not meet these requirements,
Consultant agrees to amend, supplement or endorse the existing coverage.
1.2 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.
1.3 Coverage Requirements.
1.3.1 Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least one million dollars ($1,000,000) each accident for bodily injury by
accident and each employee for bodily injury by disease in accordance with the laws of
the State of California, Section 3700 of the Labor Code.
1.31.1 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.
1.3.2 General Liability Insurance. Consultant shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, in an amount
not less than one million dollars ($1,000,000) per occurrence, two million dollars
($2,000,000) general aggregate. The policy shall cover liability arising from premises,
operations, products - completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope of coverage
for liability assumed under a contract.
1.3.3 Automobile Liability Insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
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 each accident.
Valley Soil, Inc. Page C -1
1.3.4 Professional Liability (Errors & Omissions) Insurance. 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) per claim and in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the effective date of this agreement and Consultant
agrees to maintain continuous coverage through a period no less than three years after
completion of the services required by this agreement,
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4.1 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 from each of its subconsultants.
1.4.2 Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, but not including
professional liability, shall provide or be endorsed to provide that City and its officers,
officials, employees, and agents shall be included as insureds under such policies.
1.4.3 Primary and Non Contributory. All liability coverage shall apply on
a primary basis and shall not require contribution from any insurance or self-insurance
maintained by City.
1.4.4 Notice of Cancellation. All policies shall provide 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.
1.5 Additional Agreements Between the Parties, The parties hereby agree to
the following:
1.5.1 Evidence 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 and other endorsements
as specified herein for each coverage. 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
Agreement. City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
1. 5.2 City's Right to Revise Requirements. The City reserves the right at
any time during the term of the Agreement to change the amounts and types of
insurance required by giving the Consultant sixty (60) days advance written notice of
Valley Soil, Inc. Page C-2
such change. If such change results in substantial additional cost to the Consultant, the
City and Consultant may renegotiate Consultant's compensation.
1.5.3 Enforcement of Agreement 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.
1.5.4 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.
1.5.5 Self-insured Retentions. Any self-insured retentions must be
declared to and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be
considered to comply with these requirements unless approved by City.
1.5.6 City Remedies for Non Compliance If Consultant or any
subconsultant fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to terminate this
agreement, or to suspend Consultant's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole option, be
deducted from amounts payable to Consultant or reimbursed by Consultant upon
demand.
1.5.7 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, and that involve or may involve
coverage under any of the required liability policies.
1.5.8 Consultant's 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,
Valley Soil, Inc, Page C-3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David A. Webb, Public Works Director
949 -644 -3311, dawebb @newportbeachca.gov
PREPARED BY: Shane Burckle, Water Conservation Coordinator
949 -644 -3214, sburckle @newportbeachca.gov
APPROVED:'
IT—
TITLE: Amendment No_ 1 to Professional Services Agreement with Valley
Soil, Inc., for the Newport Coast ASKS Runoff Reduction Program
ABSTRACT:
The first phase of a three -year program for the installation of weather -based irrigation
controllers within the Newport Coast watershed has been successfully completed by Valley
Soil, Inc. If approved by City Council, the agreement with Valley Soil will be increased by
$480,000 to continue implementation of the program.
Approve Amendment No. 1 to Professional Services Agreement with Valley Soil Inc.,
for a not -to- exceed cost of $480,000 to provide and install additional weather -based
irrigation controllers and provide related customer service activities; and authorize the
Mayor and City Clerk to execute the Amendment.
Approve Budget Amendment No. 13BA - 029 appropriating $150,000.00 from
the Water Enterprise Fund (500) to the Water Conservation Equipment Account No.
5500 -9040.
FUNDING REQUIREMENTS:
Account Description
Water Conservation Equipment
Irvine Ranch Water District Contribution
Metropolitan Water District Rebate
Account Number Amount
5500 -9040 $ 150,000.00
7255- C5002010 $150,000.00
7255- C5100968 $ 180.000.00
TOTAL $ 480,000.00
Page 1 of 39
Amendment No. 1 to Professional Services Agreement with Valley Soil, Inc., for the Newport Coast
ASKS Runoff Reduction Program
January 22, 2013
Pages 2
t31St;u I
On September 13, 2011, City Council approved a Professional Services Agreement with
Valley Soil Inc. to manage a three -year program to install weather -based irrigation controllers
and provide related customer service activities. The fee for the first year was a not -to- exceed
cost of $750,000.00. Funding was provided from the City's $2.5 million State Water
Resources Control Board Proposition 84 grant award for the Newport Coast ASBS protection
project accepted by City Council on May 14, 2011. During the first phase of the program, over
800 weather -based irrigation controllers and 20,000 low flow irrigation nozzles were
successfully installed in the Newport Coast watershed with a customer satisfaction rate of
99.8% (one customer asked that the newly installed controller be removed.).
Additional funding of $480,000 from the following sources is now recommended to continue
the program: 1) $150,000 provided from the City's Water Enterprise Fund, 2) a $150,000
contribution from Irvine Ranch Water District and 3) $180,000 from the Metropolitan Water
District water conservation rebate program. This additional funding will satisfy the match
requirement for the Proposition 84 grant task. With this new funding, approximately 400 -500
irrigation controllers, as well as a large number of low flow irrigation nozzles would be
installed in the Newport Coast and Big Canyon watersheds. The work is anticipated to be
complete by September 2013.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
SubmittedY j n
Public Works Director
Attachments: A. Amendment No 1 to the Professional Services Agreement
B. Location Map
C. September 13, 2011 Staff Report and Professional ServioeFP11ge 2 d 39
Agreement with Valley Soil, Inc.
ATTACHMENT A
AiV€IoNDMI N'r NO ONt TO
I *R0 I ; 6IONA/. S EtVICf:S AGRFF:MFNT
WITH VALIA. ,.Y SOIL, INC, FOR
INSTALLATION OF SMART IRRIGATION N CONTROLLERS*
1 "HIS AMENDMENT NO ONE TO AGREEMENT FOR PROFESSIONAL.
SERVICE'S ( "Amendment No. One ") Is made and entered Into as of this day of
January, 2013 ( "Effective Date") by and between the CI'T'Y OF NEWPORT BEACH, a
California Municipal Corporation ( "City ") and Valley Soil, Inc., a California corporation
( "Consultant"), whose address Is P.O. Box 890595, Temecula, CA 92589 and Is made
with reference to the following:
RECITALS
A. On September 13, 2011, City and Consultant entered into a Professional
Services Agreement ( "Agreement °) for the design and implementation of a
marketing outreach program for the installation of Smart irrigation Controllers
("Project").
B. City desires to enter into this Amendment No. One to reflect additional services
not Included in the Agreement, to extend the term of the Agreement to
September 30, 2014, to Increase the total compensation and to update insurance
requirements.
C. City and Consultant mutually desire to amend the Agreement, as provided below.
NOW, THEREFORE, it Is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: The term of this Agreement shall commence on September 13, 2011, and
shall terminate on September 3€3, 2014 unless terminated earlier as set forth herein.
Exhibit A to the Agreement shall be supplemented to include the Scope of Work
dated January 10, 2013, attached hereto and incorporated herein by reference
( "Services" or "Work "). The City may elect to delete certain Services within the Scope of
Work at its sole discretion.
3. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates attached hereto as Exhibit B, and incorporated herein by reference.
Section 4 of the Agreement Is amended In Its entirety and replaced with the
following: 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
Page 3 of 39
Milting f atca: or Progress 1'aymorils .30hodulo attached hereto tra; Exhibit Et and
incorporotod horoin by reference. Consuitsfit's compensation for sail Work performed in
accordance with this Agreement, including all reimbursable items and subconsuitant
fees, shall not exceed One Million Two Flundred Thirty Thousand Dollars and
001400 ($^4, 230,000.00) 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. INSURANCE
Section 14 of the Agreement Is amended in Its entirety and replaced with the
following: 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 or for other periods as specified in this
Agreement, policies of Insurance of the type, amounts, terms and conditions described
In the Insurance Requirements attached hereto as Exhibit C, and Incorporated herein by
reference.
5. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
iTeiT /a�rifAlT€t *7Tum4iUlf7mg
Valley Soil, Inc. _ PaW9? 4 of 39
IN W@INI.s" WIiriuzfllw, tics pnttkv hnvc coui:od thin Agro(,-i font to hr
nxecutc:d on the dsatos written below,
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
ATTEST:
Date:
Leliani 1. Brown
City Cleric
e
CITY OF NEW171091' 13FACU!,
A California municipal corporation
Keith Curry
Mayor
CONSUL,rA.NT: Valley Soil,
California corporation
Eric Anderson
President
Date:
By:
Terry Anderson
Secretary
Attachments: Exhibit A — Scope of Work
Exhibit B -- Schedule of Billing Rates
Exhibit C — Insurance Requirements
Inc., a
Valley Soil, Inc. PagpQ6 5 of 39
EXHIVAYA
SCOPE OF WORK
Valley Soil, Inc. Page MT 6 of 39
Request for Updated Scope of Worm
For the:
Date: Thursday, January 10, 2013
Update submitted electronically to:
Shane Burckle
Robert Stein
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92,663
Submitted by:
Valley Soul, Inc.
P. O. Box 890595
Temecula, CA 92589
951 - 767 - 2215, office
888- 2681009, toll free
866 - 729 -1784, fax
Contact: Eric Anderson,
President
Page 7 of 39
It is understood that as a Consultant/ Contractor / Vendor ffor the i7va - Irrigatzan Reduction Program
(program) or rcfeo-cd to as the Runoff Reduction Program: tFalley Soil, Inc shall be coordinating efforts
between two Districts; the City of; levvport Beach and the Irvine Itaanc°h WVater District (colfccaively rekhrred
to as the District or CNB for this Update), Valley Soil, Inc's (Valley Soil) objectives in the end are to reduce
irrigation vv:aste water and irrigation runoff by obtaining high water user data; prioritizing and targeting the
customers; develop and distribute marketing materials; contact die selected group; survey die sites; obtain
waivers of accepGuice; purchase products from local vendors or as instructed; install, sett up rid program
qualified weather based irrigation controllers and orwidi Row sensors/ master valves or install other
conservation devices as directed; document and report on all proga.am settings, communication passwords,
Gvebsitr:s and system operation functions to allow for multiple user view points or management; train
customers in die proper operations of the products; distribute and discuss operating manuals, crl's,
programming charts, product cvarriuitees, and support information distribute and discuss survey findings
and issues, additiorial conservation products or other helpf f information; provide free limited call back
services for product issues and continuing training; document and record all findings in our online data
base; provide specific instillation in €ormation in a City /Disttict /MWDOC fnd MWD approved format for
rebate submittal; prepare and submit reports or provide presentations per the timelines; complete the
project within the time frames and locations set for by the Contract and the District:
It is understood that $750,000 of die $1,230,000 Program Funding has been used leaving it balance. of
$150,000 to be available for the Customers of the CiNM
It is understood that the District may change the goals„ specifics, products, funding or contract length.
Unless modified by tiie City of Newport Beach dais Program should sunset at September 30, 2013.
This shall be accomplished by and within the timelines ofthe following:
a Continue with the District's business standards to allow us to perform the work to CNB
specifications.
® Meet with District Representatives to obtain customer informatiom
Customer names, account numbers, addresses, phone numbers, 3 year
historical usage, lot size, othcrspecifics.
o Use the developed/ approved targeted inarketingmaterials and preliminary customer packages
highlighting. The Districts/ funding agents logo and statement, Program's reduction goals and
methods of implcmcntAtion; the program's costs to the customer; why the customer has been
selected to participate and what benefits the customer should obtain; explain where die funding
comes from; describe any tiered rate structures; provide the District's and Valley Soil's contict
information.
v Continue die entering of collected customer contact data into out online data base to develop
tracking / reporting forms and statistics for our real titne office and field reporting synchronization.
* Use the developed liability waiver and consent form to present to and gather the customer's
signature.
* Prioritize and connect selected customers by direct snail and then direct calling to schedule survey
appointments. At least three phone contaceattempts shall be trade.'Che District shall be notified on
non - responsive customers via our monthly data base reports.
Page 8 of 39
Fwld t asicinp, iiud Projer t i mN:
IliVa;r,nI poh P('r id" II i rl rr-ukhn;an(I Crr-do It N1 ls, sunray f sites to dstr. rrnkic uri &u it) ii ixsuc%
document krip,ation axkve specifics, di8CU6s any Prognnn or nrila €lion eligibility issues , niantial
systems, if, Vero itrigafion repairs needed, mis(ing WBIC's in use or previous ly rebated; discuss cite
rt,isons for ptacticiny water conservation, discuss the sites irrigation issues, any tiered rate structure
questions; present the approved WBIC's and Stow sensors including what products array aid in
additional water, or energy conservation stich as standardizing large rotor nozzles, variable Frequency
drive pump motors for the I--IC7A pools and landscaped areas, 1.2$ or 0,8 gpf toilcl.3, faucet ae ators,
low flow shower nozzles, efficient washers and dishwashers and high efficiency spray/ rotor
nozzles. Also discuss energy savings potentials obtained by die reduction in water delivery chargcs
or improved methods. Formulate and estimated return on invesfmcuit for the products discussed for
commercial accounts,
• Present systern upgrade or repair information that may need to he done prior to Program product
installation, provide `leave behind" documentation for the customer and deliver a survey copy to
the Agency; accomplished by our real time repurf ng system and Drop Box.
• Present wrincri District and Valley Soil contact information including Field and office contract: mines,
the toll free number, Other office numbers and mailingeddresses. Encourage the customers to
contact the District or Valley :foil for any questions or concerns.
• Present, asphalt and obtain customer signed waiver/ consent forms, have the customer matte a copy
or deliver the signature via the Drop Box, a copy shall be kept for our records and a scan or
electronic version of the original shall be sent to the District via our data base.
• Contact the District Representative if flow sensors, master valves, central systems, 2 way
communication SVBIC systems, high efficiency rotor head replacements, high efficiency nozzles, soil
moisture sensors, relay points, ancillary products or other conservation products requested m be
installed, or as directed.
• Schedule am installation date.
• Pick up the products from local "conservation product" vendors.
• Deliver/ install 1VIRC's and approved products; program the \Yt13IC's, flow sensor coefficients or
other products per manufacturer's and site specific survey data; activate data or communication
products as necessary, establish any 2 way operation points, complete all operational testing and
tniiningwith the customer; deliver all manuals; have the customer sign off oil the work; enter the
sign off and documentation into the data base; recycle the units according to established e -waste
guidelines or as directed. Inoperative 1YT IC's or product: returns shall be documented per die
manufacturer's instructions and re- installed at no cost to the CNB or Customer. Manufacturers have
agreed to Nvarranty their WBIC's for this Program at 5 years.
• Train and educate the customers on the use and programming of the `C•'BIC, etc. Show the simple
adjustment features and explain what the results are for each adjustment. Explain the consequences
of over- adjusting the controller program and that additional sprinkler adjustments, retrofits or
repairs may he needed to prevent "Flood irrigating" areas and reducing runoff potentials by
eaiahlishing better distribution uniformity percentages while maintaining good plant vigor and
heralth.
• Document all customer contract and programming notes. Leave a copy-with the customer and
submit it copy to the District; establish 2 way communication protocols at the Districts Location and
train State; for accessing the information, provide additional training if needed or directed.
• Enter customer contacts, programming, notes and other data into our online data base.
• ftonvard reports and data to the District as per the Contract timelines.
�u.._:a,.,... =.� ���:c.�„n nw �,�..•- �W.k�.�• -�::a� ,�.,*.'�'kw�...:��n.....,,.,,, u,,� ..nom -,
Over - Watering Reduction Program Paged
Page 9 of 39
Obtsim fie ill file Dkwirtsilly fur it) crdaIel diet rrnturr�.additi"11,11 (rtI, ],,a nt= suclr as, fIwcustortwI
hi >ieqit A vi sto osaftt and t.teil'int;, if rccim ;it d, iIIto fl) e earsfonit, daia ba,c t,,, u.tek d - ouin,inS
n,age fe, i h r current and jm,ei F I for comparable reporting and W813 If hitch custolne't contacts by
what coat ict was made:, Will %two, the results, what sereicvs or follow up ivas provided,, what
anstvera,vere.. given, w1w additional wsiistancc may bo provided anci to offer the extended
nianuEacturers and Valley Sail's customerwirr,uvy,
" Provide all information, documentation and updates; to die District, formatted in a compatible form.
o Conduct follow-up contacts as necd4A or directed. Offer further assistance and or answer any
questions. Submit dye survey result; to the District. CA, GM and OS shalt scat the meetings to be
attended by the FS and PIN[. Valley Soil shall provide uninterrupted customeer support for at least a 2
year period, 5 years may be granted, to ensure customer "buy in" to the cnnaervation products or
methods, Valley Soil is still ill Contact Nvith customers ans( associations for projects completed over. 5
years ago.
Track and monitor monthly %eater use per customer os required. Provide customer result„ to die
District if requited basing the comparisons on historical water use and UT weather data compared to
=rentivater Lose and ET weather data,
* Finalize data base information, field notes, programming infonnztion, customer contacts, monitored
usage reports, docunit:ntatf, in and presentwithin the time frames to and set forth by fltc District as
requested.
a Maintain die ability to allow customers to contact Valley Soil for 5 years, the length of the WBIC
product inanufacturer s warranty or as needed.
Thih updated Scope of work is being submitted for the continuance of the well received Over - Irrigation
Reduction Program by Valley Soil Inc as directed by the City of Newport Beach;
�rrc Aaaeesun, $sesidm[ �� f)ate
Over - Watering Reduction Program page 4
Page 10 of 39
SGHEDULE OF BILLING UZATES
Valley Soil, Inc. PageWl" of 39
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EXHIBIT C
INSURANCE REQUIREIVIENI S - PROFESSIONAL SERVICES
1.1 Provision of "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, policies of Insurance of the type
and amounts described below and in a form satisfactory to City. Consultant agrees to
provide insurance in accordance with requirements set forth here, if Consultant uses
existing coverage to comply and that coverage does not meet these requirements,
Consultant agrees to amend, supplement or endorse the existing coverage.
1.2 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.
1.3 Coverage Requirements.
1.3.1 Workers' Compensation Insurance. Consultant shall maintain
Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance
with limits of at least one million dollars ($1,000,000) each accident for bodily injury by
accident and each employee for bodily Injury by disease in accordance with the laws of
the State of California, Section 3700 of the Labor Code.
1.3,1.1 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.
1.3.2 General Liabilltu insurance. Consultant shall maintain commercial
general liability insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, In an amount
not less than one million dollars ($1,000,000) per occurrence, two million dollars
($2,000,000) general aggregate. The policy shall cover liability arising from premises,
operations, products-completed operations, personal and advertising injury, and liability
assumed under an Insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope of coverage
for liability assumed under a contract.
1.3.3 Automobile Liability, Insurance, Consultant shall maintain
automobile Insurance at least as broad as Insurance Services Office form CA 00 01
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 each accident.
Valley Soil, Inc. pag &1303 of 39
1.3.4 P,rpI`@ssion@.I Ij- gh lity (L-,,rro nisslong rance. Consultant
j� qi Qu _j�
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) per claim and In the aggregate. Any policy Inception date, continuity date,
or retroactive date must be before the effective date of this agreement and Consultant
agrees to maintain continuous coverage through a period no less than throe years after
completion of the services required by this agreement.
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4,1 Waiver of Subrogation. All Insurance coverage maintained or
procured pursuant to this agreement shall be endorsed to waive subrogation against
Clty, 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 from each of Its subconsultents,
1.4.2 Additional Insured Status. All liability policies Including general
liability, excess liability, pollution liability, and automobile liability, but not Including
professional liability, shall provide or be endorsed to provide that City and Its officers,
officials, employees, and agents shall be Included as Insureds under such policies,
1.4.3 Primary and Non Contributory. All liability coverage shall apply on
a primary basis and shall not require contribution from any insurance or self-insurance
maintained by City.
1,4.4 Notice of Cancellation. All policies shall provide 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.
1.5 Additional Aareements Between the Parties. The parties hereby agree to
the following:
1.5.1 Evidence 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 and other endorsements
as-specified herein for each coverage. 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
Agreement. City reserves the right to require complete, certified copies of all required
insurance policies, at anytime.
1.5.2 We L Right to Revise Requirements, The City reserves the right at
�
any time during the term of the Agreement to change the amounts and types of
insurance required by giving the Consultant sixty (60) days advance written notice of
Valley Soil, Inc. Pag&r
,Q24 of 39
sf.ich change. If Such change results in substantial additional cost to the Consultant, the
City at Consultant may renegotiate Consultant's compensation.
1.5.3 j ntarcement of Agreement rovlsions. 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,
1.6.4 Roquirfntents 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.
1.5.5 Seif -insu od Retentions. Any self - insured retentions must be
declared to and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be
considered to comply with these requirements unless approved by City.
1.5.6 City Remedies for Non Compliance If Consultant or any
subconsultant fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such Insurance, to terminate this
agreement, or to suspend Consultant's right to proceed until proper evidence of
Insurance Is provided. Any amounts paid by City shall, at City's sole option, be
deducted from amounts payable to Consultant or reimbursed by Consultant upon
demand.
1.5.7 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, and that Involve or may 'involve
coverage under any of the required liability policies.
1.5.8 Consultant's 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.
Valley Soil, Inc. pagd35 of 39
Page 16 of 39
A`)`i°ACFIME: NT C
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 -644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Robert Stein, Assistant City Engineer
949 -644 -3322, rstein @newportbeachca.gov
APPROVED:
TITLE: NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM -
APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC.
FTITZITUMM?
The City proposes to execute a Professional Services Agreement with Valley Soil, Inc.
(Valley Soil) to manage a three -year program to install weather -based irrigation
controllers within the Newport Coast ASBS watershed as part of the City's program to
assist property owners to reduce over - irrigation of landscape areas. The first year of the
program will be funded from the City's Proposition 84 grant award.
RECOMMENDATION:
Approve a Professional Services Agreement with Valley Soil for managing installation of
weather -based irrigation controllers and related customer service activities at a not to
exceed cost of $750,000.
FUNDING REQUIREMENTS:
First -year funding of $750,000 will be provided from the City's $2.5 million State Water
Resources Control Board Proposition 84 grant award, accepted by City Council on May
14, 2011, for protection of the Newport Coast ASBS project.
Page 17 of 39
NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM - APPROVAL OF PROFESSIONAL SERVICES
AGREEMENT WITH VALLEY SOIL, INC.
September 13, 2011
Page 2
Account Description
Proposition 84 Grant Funds
TOTAL
Account Number
7255- C5002007
Amount
$ 750,000.00
$ 750,000.00
In order to protect the coastal canyons and the sensitive marine life areas along
Newport Coast, the City has a significant interest in reducing dry - weather runoff in the
canyons caused by over - irrigation practices. Over- irrigation in Newport Coast has
caused the groundwater table to increase by an estimated 30 to 40 feet. This
groundwater mound subsequently discharges to the canyon where the streams now run
perennially, The canyon streams carry fertilizer, pesticides, bacteria and metals into the
sensitive marine life area along Newport Coast.
One of the keys to reducing aver - irrigation is for property owners to install weather -
based irrigation controllers, also known as Smart controllers that have proven
efficiencies in water application. These controllers meter out the proper amount of water
to plants based on a set of parameters including weather conditions, sunlight, soil type,
plant type, property slope and valve precipitation rate, In 2007, the City launched a
similar successful project using grant and City funds that resulted in installation of over
650 irrigation controllers in Newport Coast. Under this new program, staff hopes to
encourage the installation of another 500 Smart controllers within the Newport Coast
area.
The Request for Proposals for this Professional Services Agreement was sent to five
consulting firms. Three consultant proposals were submitted to the City. The evaluation
committee was composed a staff person from MWDOC, IRWD and the City. Each
proposal was evaluated for team qualifications, past experience on similar projects, and
project understanding. Valley Soil was rated highest. References were first checked and
then Valley Soils was invited to the City to negotiate the contract. During negotiations, a
detailed scope of work was completed and the fee agreed upon. The contract requires
Valley Soil to lead the effort on marketing the program, evaluating irrigation systems,
installing irrigation controllers, providing comprehensive customer service and trouble
shooting, and providing data on program effectiveness. (See Attachment A.)
This is a three -year program. Funding for Years 2 (FY 12/13) and 3 (FY 13/14) will be
provided by grant match fund requirements with IRWD and the City each providing a
total contribution of $150,000 (combined total $300,000). A Memorandum of
Understanding with IRWD for its contribution is in preparation.
Page 18 of 39
NEWPORT COAST ASBS RUNOFF Re DUCTION PROGRAM - APPROVAL OF PROFESSIONAL SERVICFS
AGRFLMENT WITH VALLEY So(LS, INC.
SLP(ember 13, 2011
Page 3
ENVIRONMENTAL REVIEW:
Staff recornmends the City Council find this action 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.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Director
Attachments: A. Professional Services Agreement
B. Location Map
Page 19 of 19
Attachment ent A
PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC. FOR
INSTALLATION OF SMART IRRIGATION CONTROLLERS
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 VALLEY SOIL,
INC., a California corporation („Consultant "), whose address is 38125 E. Benton Road,
Temecula, CA 92592 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 encouraging water conservation In high landscape irrigation water usage
areas.
C. City desires to engage Consultant to design and implement a marketing outreach
program for Installation of Smart Irrigation Controllers ( "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 Eric
Anderson.
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:
The term of this Agreement shall commence on the above written date, and shall
terminate on September 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. 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.
Page 20 of 39
3. TIME OF PERFORMANCE,
3.1 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.
3.1.1 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.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (t 0) 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.
3.3 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
4.1 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 B 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 Seven
Hundred Fifty Thousand Dollars and no /100 ($750,000.00) 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.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. 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.
4.3 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:
4.3.1 The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
4.3.2 Approved reproduction charges.
4.3.3 Actual casts and/or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the performance of this
Agreement.
4.4 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 B.
4.5 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this Agreement, no further
payments shall be made until City has accepted the final Work under this Agreement
5. PROJECT MANAGER
5.1 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 Eric Anderson 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.
5.2 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 Public Works Department. John
Kappeler, Water Quality Manager 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. GITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
of 39
Valley Soil, Inc. Page 3
7.1.2 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.
7.1.3 Provide usable life of facilities criteria and infonmation with regards
to new facilities or facilities to be rehabilitated.
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
completes( 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
91 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
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).
of 39
Valley Soil, Inc. Page: 4
9.2 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.
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 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,
14.1 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, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
of 39
Valley Soil, Inc. Page 5
14.2 Proof of..l,rtsurance. 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 anytime.
14.2.1 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.
14.3 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 Vll (or larger) In accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coueraae. 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,
14.4.1.1 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.
14.4.1.2 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.
14.5 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.
14.6 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.
i39
Valley Soil, Inc. Page 6
14,7 Professional „Liabiilfy_(E,, rors & nmissons.,_Cca
yq_ rqc 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
($1,000,006) limit per claim and in the aggregate.
14.8 Other insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 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.
14.8.1.2 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,
14.8.1.3 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,
14.8.1.4 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.
14.9 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,
14.10 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.
16. 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
f as
Valley Soil, Inc. Page'7
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
City and Consultant agree that subconsultants may be used to.complete the Work
outlined in the Scope of Services. The subconsultants authorized by City to perform
Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to
City for all acts and omissions of the subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. The City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and the City. Except as
specifically authorized herein, the Services to be provided under this Agreement shall
not be otherwise assigned, transferred, contracted or subcontracted out without the
prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 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
shalt 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.
17.2 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 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.
f 39
Valley Soil, Inc. Page 8
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
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. CITYS RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24, CONFLICTS OF INTEREST
24.1 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
f 39
Valley Soil, Inc. Page 9
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 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
25,9 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: John Kappeter
Public Works Department
City of- Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 -644 -3218
Fax: 949 - 644 -3318
25.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Eric Anderson
Valley Soil, Inc.
38125 E. Benton Rd.
Temecula, CA 92592
Phone: 951- 767 -2215
Fax: 951 -757 -2467
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
27.1 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
of 39
Valley Soil, Inc. Page 10
reasonably roquired 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.
27.2 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, STANDARD PROVISIONS
28.1 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.
28.2 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.
28.3 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.
28.4 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.
28.5 Interpretation
of 39
Valley Soil, Inc. Page 11
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.
28.6 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.
28,7 SeverabilitV
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.
28.8 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.
28.9 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.
28.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
28.11 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shah constitute one and the same
instrument.
f39
Valley Soil, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM.
OFFICE� �THCITYATTORNEY
By:
Leonia Mulvihill
Assistant City Attorney
ATTEST.
By:_
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Michael F. Henn
Mayor
CONSULTANT: Valley Soil, Inc., a
California Corporation
By:
Eric Anderson,
President
Date:
By:
Terry Anderson,
Secretary
Attachments: Exhibit A — Scope of Services
Exhibit .B — Schedule of Billing Rates
Valley Soil, Inc. Page 13
Page 33 of 39
08/0912611 TUB M19 VAX 7643764145 jJ4002 /064
SCOPE OF WORK
AlUgtist 2, 2011
A. Candidate Target Areas and Program Marketing
1. With the assistance of the City and I RWD, review water usage records to identify
high landscape- irrigation water usage in designated areas,
2. Create a customer /target group contact database.
3. Recommend the smart irrigation controller(s) to be Installed under this program -
for City review and approval. Provide costs, with backup information, for
furnishing and installing each type of controller for City review and approval.
4. identify rebate potential based on the assumption that the regional wholesale/
retail provider (e.g. Municipal Water District of orange County (MWD0C)) will
renew its rebate program.
5. Design and Implement marketing outreach program seeking participants for
site assessments and device installations. Develop targeted marketing materials
and preliminary customer packages highlighting: the City's logo and program
mission statement; the program's goals and methods of implementation; costs to
the customer; why the customer has been selected to participate and what
benefits the customer should receive; explain the program's funding source;
describe any tiered water rate structures; provide Valley Soil's contact
information. Consultant shall submit marketing materials to the City for review
and approval. City will provide list of addresses, phone numbers, 3 -year historical
water usage and lot size. The marketing program shall consist of, as a minimum,
two mail -outs. This task shall be completed within 2 -4 weeks of receiving the
Notice to Proceed.
6. Consultant'shali make, as a minimum, two phone calls to each address that does
not respond to the mail out and document phone calls.
7. Payment will be received 180 days after City acceptance of the marketing and
outreach program.
B. Scheduling, Installation and Customer Service
1. Identify staff and subcontractors working on this project and submit list to City for
approval. Consultant shall provide training for the subcontractors. City shall be
invited to the training sessions.
2. Each Friday, submit a weekly work plan to the City /IRWO that lists tasks to be
perfonned the following week, All Valley Soil's staff and subcontractors shall
wear clothing that Includes the Valley Soil's Logo when on the job site.
3. Schedule and conduct site visits. Assess the viability or need at each site for
smart irrigation controllers or flow sensing devices that are compatible with the
smart controllers. Flow sensing will be limited to commercial sites and /or large
landscape sites, and will require City approval prior to installation.
4. Make basic recommendations for irrigation system repairs for Interested
participants that may be beyond the scope of the City program. Send information
Page 34 of 39
08/09/2411 TUB 15:18 FAX 7603764169 fdJ003 /004
to City. (Note; the consultant will not be asked to fix irrigation system leaks,
relocate sprinkler heads andfor repair irrigation valves, wiringi etc.): Present
system upgrade or repair information to customer that may need to be done prior
to program product installation, provide "leave behind" documentation for the
customer and deliver a copy to the City,
5. Complete and submit paperwork (e.g, application, water bill, invoice(s)
equipment and installation) needed for rebates, including waiver. All paperwork
shall be in triplicate and forwarded to City, IRVVD and MWDQC.
6. Install equipment in accordance with manufacturer requirements, City municipal
code and HOA CCR requirements. Document that systems are working.
Deliver/install equipment and approved flow sensors (as required), Program
equipment and flow sensor coefficients per product manufacturer and site
specific survey data, activate data or communioation products as necessary,
establish any 2 way operation polnts, complete all operational testing and training
with customer, deliver all manuals to customers, have customer sign off on work,
log all training for recordation, enter the sign off and documentation Into the
database, and recycle old units according to established a -waste guidelines. Old
units will be held for a minimum of 30 days after completion of City /IRWD post
installation inspection,
7, Train and educate the customers an the use and programming of the equipment.
Show the adjustment features and explain what the results are for each
adjustment, Document all customer contact and programming notes. Leave a
copy with the customer and submit two copies to the City. The submitted copies
shall be separated out by category (residential vs, commercial) and by water
service area_ Establish 2 -way communication protocols at the City's location and
train staff for accessing the information. Provide additional training as requested.
8. Track and monitor water use provided by City for all installations as required,
Provide customer results to the City and base comparisons on historical water
use and ET weather data compared to current water use and ET weather data.
9. Valley Sall to complete on site post installation equipment verification 14 to 21
calendar days after Installation and provide site inspection report to Cfty /IRWD.
City /IRWD will perform a post installation inspection within 30 calendar days of
receiving Valley Soil's post installation verification report.
10. Payment for installation will be made once City /IRWD completes their post
installation Inspection and the rebate amounts have been received by the City.
11. Design and maintain a database of outreach, installations and follow -up with
participants, Database shall be compatible with MWDOC /City database. Detail
customer complaints and resolution. Notify City and IRWD of any complaints
within 24 hours of receiving the complaint along with proposed action.
Complaints shall be resolved within five days and thereafter notify City /IRWD of
results.
12.Submit the Installation and customer service databases) monthly to the City,
attend monthly progress meetings, as required, and adjust the.
marketing /outreach program as needed based on customer feedback.
Concurrently, enter collected customer contact data into the online database and
develop tracking /reporting farms and statistics.
Page 35 of 39
08 /09 /2011 Toe, 15:19 PAX 7603704145
13.Gooperate With City's other consultants who are performing water quality
monitoring activities,
14.Transmit completed final database(s) to the City and IRWD.
16, Provide City Staff with information needed for its quarterly progress reports to the
State Water Resource Control Board (SWRCB),
16.Continue customer support (designated person), including field visits to address
customer complaints;
17. Assist City staff with its Final Report to the SWRCB.
18. Conduct follow -up contacts as needed or directed and conduct a customer .
survey. Offer further assistance and/or answer any questions. Compile and
submit the survey results to the City, including presentations at various City
committees. Valley $oil shall provide uninterrupted customer support for at least
a 2 year period, x years maybe required, to ensure, customer "buy in" to the
conservation products and /or methods. Valley Soil traditionally remains to contact
With customers and associations for at least 5 years after project completion.
19. All invoices and progress payments shall include required bacKup
documentation,
20. Teri percent of the total project cost will be withheld and distributed pending
resolution of customer complaints and submittal of the Final Report to the
(SWRCB).
Project Schedule
The project shall be completed in accordance with the following schedule:
Task
General Desorlption
Comptet!on Date
A1-3
HOA Common Area Assessment
Residential Area Assessment
September 2011
A5
Marketing Materials Distributed
October 2011
B3
Irrigation System Evaluations
November 2011
86
t ller Installations
November 2011 to
December 2012
815
Assist City with preparing
Progress Reports
Quarterly starting
Dscember2011
817
Final Report
June 2013
YAic
Page 36 of 39
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Page 38 of 39
City of Newport Beach NO BA- 13BA -029
BUDGET AMENDMENT
2012 -13 AMOUNT; $1so,aaa.ao
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
IN Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
_ from existing budget appropriations
from additiont estimated revenues
X from unappropriated fund balance
EXPLANATION:
This budget amendment Is requested to provide for the following:
To Increase expenditure appropriations from Water Enterprise Reserves for water conservation equipment related to the Newpor
Coast ASKS Reduction Program. This additional funding will satisfy the match requirements for the Proposition 84 grant task.
ACCOUNTING ENTRY:
BUDGETARYFUND BALANCE Amount
Fund Account Description Debit Credit
Soo 3605 Water Enterprise Fund - Fund Balance $150,000.00 "
REVENUE ESTIMATES (3609)
Fund7Dwision Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Automatic System Entry.
Signed: \w F tancal Approval: Finance Director Dat
Signed:
Administ ative Approval: City Manager Da (e
Signed:
City Counoi; Approval: City Clark Date
Description
Division
Number
5500 Utilities - Water Utilities
Account
Number
9040 Water Conservation Equipment $150,000.00
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Automatic System Entry.
Signed: \w F tancal Approval: Finance Director Dat
Signed:
Administ ative Approval: City Manager Da (e
Signed:
City Counoi; Approval: City Clark Date
City ®f Newport Beach NO. BA- 13BA -029
BUDGET AMENDMENT
2012-13 AMOUNT: $150,000
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
X from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from Water Enterprise Reserves for water conservation equipment related to the Newpor
Coast ASBS Reduction Program. This additional funding will satisfy the match requirements for the Proposition 84 grant task. '
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE Amount
Fund Account Description Debit Credit
500 3605 Water Enterprise Fund - Fund Balance $150,000.00 *
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
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Description
Division
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5500 Utilities - Water Utilities
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9040 Water Conservation Equipment
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
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PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC. FOR
INSTALLATION OF SMART IRRIGATION CONTROLLERS
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made
and entered into as of this &tkday of CD , 2011 by and between the CITY OF
NEWPORT BEACH, a California Munici al Corporation ( "City "), and VALLEY SOIL,
INC., a California corporation ( "Consultant'), whose address is 38125 E. Benton Road,
Temecula, CA 92592 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 encouraging water conservation in high landscape irrigation water usage
areas.
C. City desires to engage Consultant to design and implement a marketing outreach
program for Installation of Smart Irrigation Controllers ( "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 Eric
Anderson.
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.
NOUN, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
9. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on September 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. 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
3.1 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.
3.1.1 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.
3.2 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.
3.3 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
4.1 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 B 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 Seven
Hundred Fifty Thousand Dollars and no /100 ($750,000.00) 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.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. 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.
4.3 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:
4.3.1 The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
Valley Soil, Inc. Page 2
4.3.2 Approved reproduction charges.
4.3.3 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.
4.4 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 B.
4.5 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this Agreement, no further
payments shall be made until City has accepted the final Work under this Agreement
5. PROJECT MANAGER
5.1 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 Eric Anderson 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.
5.2 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 Public Works Department. John
Kappeler, Water Quality Manager 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
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
Valley Soil, Inc. Page 3
7.1.2 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.
7.1.3 Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
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
9.1 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
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).
Valley Soil, Inc. Page 4
9.2 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 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
14.1 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, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
Valley Soil, Inc. Page 5
14.2 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.
14.2.1 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.
14.3 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.
14.4 Coverage Requirements.
14.4.1 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.
14.4.1.1 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.
14.4.1.2 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.
14.5 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.
14.6 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.
Valley Soil, Inc. Page 6
14.7 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.
14.8 Other Insurance Provisions or Requirements
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 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.
14.8.1.2 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.
14.8.1.3 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.
14.8.1.4 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.
14.9 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.
14.10 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
Valley Soil, Inc. Page 7
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
City and Consultant agree that subconsultants may be used to complete the Work
outlined in the Scope of Services. The subconsultants authorized by City to perform
Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to
City for all acts and omissions of the subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. The City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and the City. Except as
specifically authorized herein, the Services to be provided under this Agreement shall
not be otherwise assigned, transferred, contracted or subcontracted out without the
prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 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.
17.2 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 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.
Valley Soil, Inc. Page 8
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
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
24.1 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
Valley Soil, Inc. Page 9
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 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
25.1 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: John Kappeler
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3218
Fax: 949 - 644 -3318
25.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Eric Anderson
Valley Soil, Inc. ?0, (say ®965g5
FadEx -115 bvlY 38125 E. Benton Rd.
No Mhil Servrco emecula, CA 92592 MAeI 72meculA0 CA, 9.5$9
Phone: 951 - 767 -2215
Fax: - 9641 - 767.2 Sbb' 119 -
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
27.1 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
Valley Soil, Inc. Page 10
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.
27.2 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. STANDARD PROVISIONS
28.1 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.
28.2 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.
28.3 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.
28.4 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.
28.5 Interpretation
Valley Soil, Inc. Page 11
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.
28.6 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.
28.7 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.
28.8 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.
28.9 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.
28.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
28.11 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
Valley Soil, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFIC F THE CITY ATTORNEY
Date:
Bye/ Y ' L�
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date:
By:_ 4�t -
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A Californian unicipal cc poration
Date:
By:
Michael F. Henn
Mayor
CONSULTANT: Valley Soil, Inc., a
California Corporation
Date: 9 (27 l �611
By: C, 0-��
Eric Anderson,
President
Date: q.1 a 7 /
By:
Terry Anders ,
Secretary
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Valley Soil, Inc. Page 13
EXHIBIT A
08/09/2011 TUB 15:19 Fax 7603766165 ®002/004
SCOPE OF WORK
August 2, 2011
A. Candidate Target Areas and Program Marketing
1. With the assistance of the City and IRWD, review water usage records to identify
high landscape- irrigation water usage in designated areas.
2. Create a customer /target group contact database.
3. Recommend the smart irrigation controller(s) to be installed under this program —
for City review and approval. Provide costs, with backup information, for
furnishing and installing each type of controller for City review and approval.
4. Identify rebate potential based on the assumption that the regional wholesale/
retail provider (e.g. Municipal Water District of Orange County (MWDOC)) will
renew its rebate program.
5. Design and implement a marketing outreach program seeking participants for
site assessments and device installations. Develop targeted marketing materials
and preliminary customer packages highlighting: the City's logo and program
mission statement; the program's goals and methods of implementation; costs to
the customer; why the customer has been selected to participate and what
benefits the customer should receive; explain the program's funding source;
describe any tiered water rate structures; provide Valley Soil's contact
information. Consultant shall submit marketing materials to the City for review
and approval. City will provide list of addresses, phone numbers, 3 -year historical
water usage and lot size. The marketing program shall consist of, as a minimum,
two mail -outs. This task shall be completed within 2 -4 weeks of receiving the
Notice to Proceed.
6. Consultant'shall make, as a minimum, two phone calls to each address that does
not respond to the mail out and document phone calls.
7. Payment will be received 180 days after City acceptance of the marketing and
outreach program.
B. Scheduling, Installation and Customer Service
1. Identify staff and subcontractors working on this project and submit list to City for
approval. Consultant shall provide training for the subcontractors. City shall be
invited to the training sessions.
2. Each Friday, submit a weekly work plan to the City /IRWD that lists tasks to be
performed the following week. All Valley Soil's staff and subcontractors shall
wear clothing that includes the Valley Soil's Logo when on the job site.
3. Schedule and conduct site visits. Assess the viability or need at each site for
smart irrigation controllers or flow sensing devices that are compatible with the
smart controllers. Flow sensing will be limited to commercial sites and /or large
landscape sites, and will require City approval prior to installation.
4. Make basic recommendations for irrigation system repairs for interested
participants that may be beyond the scope of the City program. Send information
08/09/2011 TOE 15:19 Fax 7603766145 ®003/004
to City. (Note: the consultant will not be asked to fix irrigation system leaks,
relocate sprinkler heads and /or repair irrigation valves, wiring, etc.): Present
system upgrade or repair information to customer that may need to be done prior
to program product installation, provide "leave behind" documentation for the
customer and deliver a copy to the City.
5. Complete and submit paperwork (e.g. application, water bill, invoice(s)
equipment and installation) needed for rebates, including waiver. All paperwork
shall be in triplicate and forwarded to City, IRWD and MWDOC.
6. Install equipment in accordance with manufacturer requirements, City municipal
code and HOA CCR requirements_ Document that systems are working.
Deliver /install equipment and approved flow sensors (as required). Program
equipment and flow sensor coefficients per product manufacturer and site
specific survey data, activate data or communication products as necessary,
establish any 2 way operation points, complete all operational testing and training
with customer, deliver all manuals to customers, have customer sign off on work,
log all training for recordation, enter the sign off and documentation into the
database, and recycle old units according to established a -waste guidelines. Old
units will be held for a minimum of 30 days after completion of City /IRWD post
installation inspection.
7. Train and educate the customers on the use and programming of the equipment.
Show the adjustment features and explain what the results are for each
adjustment. Document all customer contact and programming notes. Leave a
copy with the customer and submit two copies to the City. The submitted copies
shall be separated out by category (residential vs. commercial) and by water
service area. Establish 2 -way communication protocols at the City's location and
train staff for accessing the information. Provide additional training as requested.
8. Track and monitor water use provided by City for all installations as required.
Provide customer results to the City and base comparisons on historical water
use and ET weather data compared to current water use and ET weather data.
9. Valley Soil to complete on site post installation equipment verification 14 to 21
calendar days after installation and provide site inspection report to City /IRWD.
City /IRWD will perform a post installation inspection within 30 calendar days of
receiving Valley Soil's post installation verification report.
10. Payment for installation will be made once City /IRWD completes their post
installation inspection and the rebate amounts have been received by the City.
11. Design and maintain a database of outreach, installations and follow -up with
participants. Database shall be compatible with MWDOC /City database. Detail
customer complaints and resolution. Notify City and IRWD of any complaints
within 24 hours of receiving the complaint along with proposed action.
Complaints shall be resolved within five days and thereafter notify City /IRWD of
results.
12. Submit the installation and customer service database(s) monthly to the City,
attend monthly progress meetings, as required, and adjust the
marketing /outreach program as needed based on customer feedback.
Concurrently, enter collected customer contact data into the online database and
develop tracking /reporting forms and statistics.
08/09/2011 TUB 15:19 FAX 7603764165 2004/004
13. Cooperate with City's other consultants who are performing water quality
monitoring activities.
14.Transmit completed final database(s) to the City and IRWD.
15. Provide City Staff with information needed for its quarterly progress reports to the
State Water Resource Control Board (SWRCB).
16. Continue customer support (designated person) including field visits to address
customer complaints,
17. Assist City staff with its Final Report to the SWRCB.
18. Conduct follow -up contacts as needed or directed and conduct a customer
survey. Offer further assistance and /or answer any questions. Compile and
submit the survey results to the City, including presentations at various City
committees. Valley Soil shall provide uninterrupted customer support for at least
a 2 year period, 5 years maybe required, to ensure customer "buy in" to the
conservation products and /or methods. Valley Soil traditionally remains in contact
with customers and associations for at least 5 years after project completion.
19. All invoices and progress payments shall include required backup
documentation.
20. Ten percent of the total project cost will be withheld and distributed pending
resolution of customer complaints and submittal of the Final Report to the
(SWRCB).
Project Schedule
The project shall be completed in accordance with the following schedule:
Task
General Description
Completion Date
A11-3
HOA Common Area Assessment
Residential Area Assessment
September 2011
A5
Marketing Materials Distributed
October 2011
B3
Irrigation System Evaluations
November 2011
BB
Controller Installations
November 2011 to
December 2012
B15
Assist City with preparing
Progress Reports
Quarterly starting
December 2011
B17
Final Report
June 2013
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CERTIFICATE OF INSURANCE
CHECKLIST
CRY of Newport Reach
This checklist is comprised of requirements as outlined by the City of Newport Beach.'
Date Received: 11 -3 -11 Dept. /Contact Received From Tapia Moore
Date Completed: 11 -7 -11 Sent to: Tania By: Joel
Company /Person required to have certificate: Valley Soil
Type of contract: All other
I. GENERAL LIABILITY
EFFECTIVE /EXPIRATION DATE: 11 -09- 10/11 -09 -11
A.
INSURANCE COMPANY: Golden Eagle Insurance Corp
B.
AM BEST RATING (A-: VII or greater): A: XV
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
1,000,000
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
F.
not apply to Waste Haulers or Recreation)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
❑ Yes ❑ No
G.
COMPLETED OPERATIONS ENDORSEMENT (completed
❑ Yes ® No
H.
Operations status does not apply to Waste Haulers)
® Yes ® No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
I.
PRIMARY & NON- CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ® No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A N Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE /EXPIRATION DATE: 11 -11- 10/11 -11 -11
A.
INSURANCE COMPANY: United Financial Casualty Company
B.
AM BEST RATING (A-: VII or greater) A +: X
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1M min. BI & PD and $500,000 UM, $2M min
for Waste Haulers): What is limits provided? 1,000,000
— Scheduled
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided ?)
F.
PRIMARY & NON - CONTRIBUTORY WORDING (For Waste
Haulers only): ® N/A
❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY: ❑ N/A
❑ Yes ® No
H.
NOTICE OF CANCELLATION: ❑ N/A
® Yes ❑ No
❑I. WORKERS' COMPENSATION
EFFECTIVE /EXPIRATION DATE: 1 -01- 11/1 -01 -12
A.
INSURANCE COMPANY: State Compensation Insurance Fund
B.
AM BEST RATING (A-: VII or greater): Not Rated
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater)
$1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ❑ Yes
® No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
® N/A ❑ Yes ❑ No
• POLLUTION LIABILITY
® N/A ❑ Yes ❑ No
• BUILDERS RISK
® N/A ❑ Yes ❑ No
HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved: /
11 -8 -11
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
Date
RISK MANAGEMENT APPROVAL REQUIRED (Non- admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval /exception /waiver:
Approved:
Risk Management
Date
* Subject to the terms of the contract.
n � rrm ea
CEI II MCA II E OF LIABILI f Y Ill SU CE
OATS
11/008 /2011 8 /2011
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
PRODUCER
CONTACT
NAME:
Janet Dixon
Patrion Insurance - Lic #0684551
arc °Nrua
951.248.7565 aC No, 951.571.7902
Post Office Box 992
Riverside, CA 92502 -
E -MAIL
AOORESS:
PRODUCER
CU TOMER ID k:
.INSURER(S) AFFORDING COVERAGE
NAICM
Denise Pearson
INSURED
INSURERA: Golden Eagle Insurance Corp
$ 1,000,000
Eric Anderson
INSURERS: United Financial Casualty Comp
11770
DBA: Valley Soil
INSURER C:
PRODUCTS - COMPIOP AGG
P.O. Box 890595
INSURER D:
$
Temecula, CA 92589
INSURER E:
LIABILITY
ANYAUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON- OWNEDAUTOS
INSURER F :
08357417 - 711/1112011
COVERAGES CERTIFICATENUMBER: 11/12 GL /BA/WC REVISIONNUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR
LTR
TYPE OF INSURANCE
ADOL
INSR
SUB
WVO
POLICY NUMBER
POLICY EFF
MMIODIYYYY
POLICY EXP
MMIDOIYYYY
LIMITS
A
GENERAL LIABILITY
X COMMERCIALGENERALLIABILITY
CLAIMS -MADE FXI OCCUR
X
CBP8S42834
91/09/2011
1110912012
EACH OCCURRENCE
$ 1,000,000
PAEMSES OEaoacu epee
$ 100,000
MED EXP (Anyone person)
$ 5,000
PERSONAL & ADV INJURY
$ 1,000,000
GENERAL AGGREGATE
$ 2,000,000
GEN'L AGGREGATE LIMIT APPLIES PER
X POLICY PRO- LOC
JECT
PRODUCTS - COMPIOP AGG
$ 2,000,000
$
B
AUTOMOBILE
LIABILITY
ANYAUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON- OWNEDAUTOS
08357417 - 711/1112011
11/11/2012
COMBINED SINGLE LIMIT
E. accident)
$
BODILY INJURY (Per person)
_1,000,000
$
BODILY INJURY(Peraccident)
$
X
PROPERTY AGE
(Per aaid.nt) iden[)
$
$
$
UMBRELLA LIAB
EXCESS LIAB
OCCUR
CLAIMS -MADE
EACH OCCURRENCE
$
AGGREGATE
$
DEDUCTIBLE
RETENTION $
$
$
WORKERS COMPENSATION -
ANDEMPLOYERS'LIABILITY YIN
ANY PROPRIETORIPARTNEWEXECUTIVE❑
OFFICERIMEMBER EXCLUDED'1
(Mandatory in NH)
If yes, DESCRIPTION IPTION under
DESCRIPTION un OPERATIONS below
NIA
SEi
PERATE CERTIFICATE
ATTACHE
I wC$TATU- oTH-
TORYLIMITS ER
E.L. EACH ACCIDENT
$
E.L. DISEASE - EA EMPLOYE
$
E.L. DISEASE - POLICY LIMIT
$
DPSCRIPTI N FOPERATIONS I LD ATIONS I VEHICL S (AllachA QRD 101,A itignal Remark Sel d le, if more space is required)
Tty ot° few. Beac�(t 1s namedP as adcdTtTOna`� insured wTt�l respects to the general
hen required by written contract per endorsements CG2010 07 04 and CG2037 07 04 attached.
Primary/Non-contributory applies per endorsement 22 -111 01/07 attached.
diver of Subrogation per endorsement CG2404 10 93 attached.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
City of Newport Beach ACCORDANCE WITH THE POLICY PROVISIONS.
Public Works Department
3300 Newport Blvd AUTHORIZED REPRESENTATIVE
PO Box 1768 -
Newport Beach, CA 92658 -8915 Janet Dixon /7D
riahts
ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD B-
Name Of :t lonal Insured Person(s)
Or irganIzation(s):
Locations QfCovereidiOperatlons*,%
Any person or organization when You and
Any location at which You perform
such person or organization have agreed.
`work - described. . in wri . ting in' a co . n=
in' writin g in a. contract, agreement or
tract,. agre . eme at or . permit ermit for a:
permit that such person: or organization
person or organizati6n that has been
he added as an additional. insure&en Your
qualified as an additional insured
policy to provide, insurance such as, is a
under the terms of this . end . ors I eme . at.
afforded under this Covergige Part�..�
p p
iffiformation required to complete this Schedule ,.If.not shown above, will be shown in the . . Deals
A. Section 11 — Who Is An Insured Is amended to
S. With respect to the insurance afforded to these
include as an additional Insured the person(s) or
additional insureds, the following additional ex6lu4 p
organization(s) shown In the Schedule,, but only
slons applT
with respect to liability for "bodily Injury", "property
darriage", or "personal and advertising injury" .
This insurance does not apply to "bodily Injui or
i. Yl
caused, in whole or in part, by::
property damagePoccurring.after:
1; Your acts or cmissions;,or
1• All work,. including' materials, , parts or equip- .
.. . . . i . . ,
ment furnished In 6annecti with such work;
omissions
2;..The acts or omissions of those acting on . your _
-.
on project (other than service, maintenance:
behalf;:
or repairs) to be performed by or an behalf of -
In the performance of 'your ongoing operations
far
the additional insured(s) at the location of the
. . . . . . . . the additional insured(s),at the; location(s),desig—
covered operations has been completed; or.
. I . I . I .
nated above:
. :
2. That. p prt!6.n Of "Yo ur work' 6 ut of which the
injury or damage arises has been put to its In-r
tended use by any person or organization other
than another contractor or subcontractor en�' .
gaged in performing operations for a,prlhcioal
p. . . . . .
r
as a part of the same project, F . . . . . . .
a
fi
p p
CG 20 10 07.04 Q.1SO Properties, Inc., 2004 page i. ofl ❑
p
. Name Of Additional Insured Person(s),
Or Or anization s :..
Location And Description Of Cori ieted Operations
Any person or organization when You and
Any location at-which You - perform work
such person or organization have agreed
described in writing.in the contract,,
iu.writing :In a contract, agreement or. agreement
"or. permit for person or
permit that such person or organization'organization.
that has heen: qualified as
be added as an additional insured on
An additional * insured the terma
your policy to provide insurauce'such :a
of this endorsement:.`.'
.as is afforded under this Coverage. Part
Information required to complete this Schedule, if not shown above; will be shown in the Declarations:
CERTHOLDER COPY
SK
P.O. BOX 420807, SAN FRANCISCO,CA 94142 -0807
CERTIFICATE OF WORKERS' COMPENSATION INSURANCE
ISSUE DATE: 09 -29 -2011
CITY OF NEWPORT BEACH SK
PUBLIC WORKS DEPARTMENT
3300 NEWPORT BLVD
NEWPORT BEACH CA 62663-3816
GROUP:
POLICY NUMBER: 1948161 -2011
CERTIFICATE ID: 7
CERTIFICATE EXPIRES: 01 -01 -2012
01 -01- 2011/01-01 -2012
This is to certify that we have Issued a valid Workers' Compensation insurance policy in a form approved by the
California Insurance Commissioner to the employer named below for the policy period indicated.
This policy is not subject to cancellation by the Fund except upon 10 days advance written notice to the employer.
We will also give you 10 days advance notice should this policy be cancelled prior to its normal expiration.
This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded
by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document
with respect to which this certificate of insurance may be issued or to which It may pertain, the Insurance
afforded by the policy described herein is subject.. to all the terms, exclusions, and conditions, of such policy.
A Representative President and CEO
EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE.
ENDORSEMENT #1600 - ANDERSON, ERIC PRESIDENT - EXCLUDED.
ENDORSEMENT #2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2011 -09 -29 IS
-ATTACHED TO AND FORMS A PART OF THIS POLICY. THIRD PARTY NAME:
CITY OF NEWPORT BEACH
VALLEY SOIL INC. SK
PO BOX 890595
TEMECULA CA 92589
[B1 W,SK]
PRINTED : 09 -29 -2011
(REV,8 -2010)
� aF,W POR
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C9C�co0.H�P
CITY OF
N'EWP{
City Council
September 13, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Robert Stein, Assistant City Engineer
949 - 644 -3322, rstein @newportbeachca.gov
APPROVED: _7� C_
TITLE: NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM -
APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC.
ABSTRACT:
The City proposes to execute a Professional Services Agreement with Valley Soil, Inc.
(Valley Soil) to manage a three -year program to install weather -based irrigation
controllers within the Newport Coast ASBS watershed as part of the City's program to
assist property owners to reduce over - irrigation of landscape areas. The first year of the
program will be funded from the City's Proposition 84 grant award.
RECOMMENDATION:
Approve a Professional Services Agreement with Valley Soil for managing installation of
weather -based irrigation controllers and related customer service activities at a not to
exceed cost of $750,000.
FUNDING REQUIREMENTS:
First -year funding of $750,000 will be provided from the City's $2.5 million State Water
Resources Control Board Proposition 84 grant award, accepted by City Council on May
14, 2011, for protection of the Newport Coast ASBS project.
NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM - APPROVAL OF PROFESSIONAL SERVICES
AGREEMENT WITH VALLEY SOIL, INC.
September 13, 2011
Page 2
Account Description
Proposition 84 Grant Funds
TOTAL
DISCUSSION:
Account Number
7255- C5002007
Amount
$ 750,000.00
$ 750,000.00
In order to protect the coastal canyons and the sensitive marine life areas along
Newport Coast, the City has a significant interest in reducing dry- weather runoff in the
canyons caused by over - irrigation practices. Over - irrigation in Newport Coast has
caused the groundwater table to increase by an estimated 30 to 40 feet. This
groundwater mound subsequently discharges to the canyon where the streams now run
perennially. The canyon streams carry fertilizer, pesticides, bacteria and metals into the
sensitive marine life area along Newport Coast..
One of the keys to reducing over- irrigation is for property owners to install weather -
based irrigation controllers, also known as Smart controllers that have proven
efficiencies in water application. These controllers meter out the proper amount of water
to plants based on a set of parameters including weather conditions, sunlight, soil type,
plant type, property slope and valve precipitation rate. In 2007, the City launched a
similar successful project using grant and City funds that resulted in installation of over
650 irrigation controllers in Newport Coast. Under this new program, staff hopes to
encourage the installation of another 500 Smart controllers within the Newport Coast
area.
The Request for Proposals for this Professional Services Agreement was sent to five
consulting firms. Three consultant proposals were submitted to the City. The evaluation
committee was composed a staff person from MWDOC, IRWD and the City. Each
proposal was evaluated for team qualifications, past experience on similar projects, and
project understanding. Valley Soil was rated highest. References were first checked and
then Valley Soils was invited to the City to negotiate the contract. During negotiations, a
detailed scope of work was completed and the fee agreed upon. The contract requires
Valley Soil to lead the effort on marketing the program, evaluating irrigation systems,
installing irrigation controllers, providing comprehensive customer service and trouble
shooting, and providing data on program effectiveness. (See Attachment A.)
This is a three -year program. Funding for Years 2 (FY 12/13) and 3 (FY 13/14) will be
provided by grant match fund requirements with IRWD and the City each providing a
total contribution of $150,000 (combined total $300,000). A Memorandum of
Understanding with IRWD for its contribution is in preparation.
NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM - APPROVAL OF PROFESSIONAL SERVICES
AGREEMENT WITH VALLEY SOILS, INC.
September 13, 2011
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
aaum
Director
Attachments: A. Professional Services Agreement
B. Location Map
Attachment A
PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC. FOR
INSTALLATION OF SMART IRRIGATION CONTROLLERS
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 VALLEY SOIL,
INC., a California corporation ( "Consultant'), whose address is 38125 E. Benton Road,
Temecula, CA 92592 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 encouraging water conservation in high landscape irrigation water usage
areas.
C. City desires to engage Consultant to design and implement a marketing outreach
program for Installation of Smart Irrigation Controllers ( "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 Eric
Anderson.
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.
NOUN, 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 September 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and. are
hereby incorporated by reference. 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
3.1 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.
3.1.1 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.
3.2 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.
3.3 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
4.1 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 B 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 Seven
Hundred Fifty Thousand Dollars and no /100 ($750,000.00) 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.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. 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.
4.3 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:
4.3.1 The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
Valley Soil, Inc. Page 2
4.3.2 Approved reproduction charges.
4.3.3 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.
4.4 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 B.
4.5 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this Agreement, no further
payments shall be made until City has accepted the final Work under this Agreement
5. PROJECT MANAGER
5.1 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 Eric Anderson 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.
5.2 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 Public Works Department. John
Kappeler, Water Quality Manager 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
7.1 In order to assist. Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
Valley Soil, Inc. Page 3
7.1.2 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.
7.1.3 Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
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
9.1 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
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).
Valley Soil, Inc. Page 4
9.2 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 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
14.1 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, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
Page 5
Valley Soil, Inc.
14.2 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.
14.2.1 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.
14.3 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.
14.4 Coverage Requirements.
14.4.1 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.
14.4.1.1 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.
14.4.1.2 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.
14.5 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.
14.6 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.
Valley Soil, Inc. Page 6
14.7 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.
14.8 Other Insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 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.
14.8.1.2 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.
14.8.1.3 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.
14.8.1.4 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.
14.9 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.
14.10 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
Valley Soil; Inc. Pagel
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
City and Consultant agree that subconsultants may be used to complete the Work
outlined in the Scope of Services. The subconsultants .authorized by City to perform
Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to
City for all acts and omissions of the subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. The City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and the City. Except as
specifically authorized herein, the Services to be provided under this Agreement shall
not be otherwise assigned, transferred, contracted or subcontracted out without the
prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 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.
17.2 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 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.
Valley Soil, Inc. Page 8
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. VVITHHOLDINGS
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
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
24.1 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
Valley Soil, Inc. Page 9
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 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
25.1 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: John Kappeler
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949- 644 -3218
Fax: 949 - 644 -3318
25.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Eric Anderson
Valley Soil, Inc.
38125 E. Benton Rd.
Temecula, CA 92592
Phone: 951 - 767 -2215
Fax: 951- 767 -2467
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
27.1 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
Valley Soil, Inc. Page 10
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.
27.2 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. STANDARD PROVISIONS
28.1 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.
28.2 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.
28.3 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.
28.4 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.
28.5 Interpretation
Valley Soil, Inc. Page 11
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.
28.6 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.
28.7 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.
28.8 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.
28.9 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.
28.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
28.11 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
Valley Soil, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE,Q TH
CITY ATTORNEY A California municipal corporation
Date:
Date:
By:
By:
Leonie Mulvihill
Michael F. Henn
Assistant City Attorney Mayor
ATTEST:
CONSULTANT: Valley Soil, Inc., a
Date:
California Corporation
Date:
By:
By:
Leilani I. Brown
Eric Anderson,
City Clerk
President
Date:
By:
Terry Anderson,
Secretary
Attachments:
Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Valley Soil, Inc. Page 13
ii � f �
� i� i
08/09/2011 TUB 15:19 FAX 7603764145
SCOPE OF WORK
August 2, 2011
A. Candidate Target Areas and Program Marketing
1. With the assistance of the City and iRWD, review water usage records to identify
high landscape - irrigation water usage in designated areas.
2. Create a customer /target group contact database.
3. Recommend the smart irrigation controller(s) to be installed under this program —
for City review and approval_ Provide costs, with backup information, for
furnishing and installing each type of controller for City review and approval.
4. Identify rebate potential based on the assumption that the regional wholesale/
retail provider (e.g. Municipal Water District of Orange County (MWDOC)) will
renew its rebate program.
5. Design and implement a marketing outreach program seeking participants for
site assessments and device installations. Develop targeted marketing materials
and preliminary customer packages highlighting: the City's logo and program
mission statement; the program's goals and methods of implementation; costs to
the customer; why the customer has been selected to participate and what
benefits the customer should receive; explain the program's funding source;
describe any tiered water rate structures; provide Valley Soil's contact
information. Consultant shall submit marketing materials to the City for review
and approval. City will provide list of addresses, phone numbers, 3 -year historical
water usage and lot size. The marketing program shall consist of, as a minimum,
two mail -outs. This task shall be completed within 2 -4 weeks of receiving the
Notice to Proceed.
6. Consultant' shall make, as a minimum, two phone calls to each address that does
not respond to the mail out and document phone calls.
7. Payment will be received 180 days after City acceptance of the marketing and
outreach program.
B. Scheduling, installation and Customer Service
1. Identify staff and subcontractors working on this project and submit list to City for
approval. Consultant shall provide training for the subcontractors. City shall be
invited to the training sessions.
2. Each Friday, submit a weekly work plan to the City /IRWD that lists tasks to be
performed the following week. All Valley Soil's staff and subcontractors shall
wear clothing that includes the Valley Soil's Logo when on the job site.
3. Schedule and conduct site visits. Assess the viability or need at each site for
smart irrigation controllers or flow sensing devices that are compatible with the
smart controllers. Flow sensing will be limited to commercial sites and/or large
landscape sites, and will require City approval prior to installation.
4. Make basic recommendations for irrigation system repairs for interested
participants that may be beyond the scope of the City program. Send information
810.02/004
08/09/2011 TUB 15:19 FAX 7603764145 2003/004
to City. (Note: the consultant will not be asked to fix irrigation system leaks,
relocate sprinkler heads and /or repair irrigation valves, wiring, etc.). Present
system upgrade or repair information to customer that may need to be done prior
to program product installation, provide "leave behind" documentation for the
customer and deliver a copy to the City.
5. Complete and submit paperwork (e.g. application, water bill, invoice(s)
equipment and installation) needed for rebates, including waiver. All paperwork
shall be in triplicate and forwarded to City, IRWD and MWDOC.
6. Install equipment in accordance with manufacturer requirements, City municipal
code and HOA CCR requirements_ Document that systems are working.
Deliver /install equipment and approved flow sensors (as required). Program
equipment and flow sensor coefficients per product manufacturer and site
specific survey data, activate data or communication products as necessary,
establish any 2 way operation points, complete all operational testing and training
with customer, deliver all manuals to customers, have customer sign off on work,
log all training for recordation, enter the sign off and documentation into the
database, and recycle old units according to established a -waste guidelines. Old
units will be held for a minimum of 30 days after completion of City /IRWD post
installation inspection.
7. Train and educate the customers on the use and programming of the equipment.
Show the adjustment features and explain what the results are for each
adjustment. Document all customer contact and programming notes. Leave a
copy with the customer and submit two copies to the City. The submitted copies
shall be separated out by category (residential vs. commercial) and by water
service area. Establish 2 -way communication protocols at the City's location and
train staff for accessing the information. Provide additional training as requested_
S. Track and monitor water use provided by City for all installations as required.
Provide customer results to the City and base comparisons on historical water
use and ET weather data compared to current water use and ET weather data.
9. Valley Soil. to complete on site post installation equipment verification 14 to 21
calendar days after installation and provide site inspection report to City /IRWD.
City /IRWD will perform a post installation inspection within 30 calendar days of
receiving Valley Soil's post installation verification report.
10. Payment for installation will be made once City /IRWD completes their post
installation inspection and the rebate amounts have been received by the City.
11.. Design and maintain a database of outreach, installations and follow -up with
participants. Database shall be compatible with MWDOC /City database. Detail
customer complaints and resolution. Notify City and IRWD of any complaints
within 24 hours of receiving the complaint along with proposed action.
Complaints shall be resolved within five days and thereafter notify City /IRWD of
results.
12. Submit the installation and customer service database(s) monthly to the City,
attend monthly progress meetings, as required, and adjust the
marketing /outreach program as needed based on customer feedback.
Concurrently, enter collected customer contact data into the online database and
develop tracking /reporting forms and statistics.
08/09/2011 TUB 15:19 FAX 7603764145
13- Cooperate with City's other consultants who are performing water quality
monitoring activities.
14.Transmit completed final databases) to the City and IRWD.
15. Provide City Staff with information needed for its quarterly progress reports to the
State Water Resource Control Board (SWRCB).
16- Continue customer support (designated person) including field visits to address
customer complaints,
17. Assist City staff with its Final Report to the SWRCB.
18. Conduct follow -up contacts as needed or directed and conduct a customer
survey. Offer further assistance and /or answer any questions. Compile and
submit the survey results to the City, including presentations at various City
committees. Valley Soil shall provide uninterrupted customer support for at least
a 2 year period, 5 years maybe required, to ensure customer "buy in" to the
conservation products and /or methods. Valley Soil traditionally remains in contact
with customers and associations for at least 5 years after project completion.
19. All invoices and progress payments shall include required backup
documentation.
20.Ten percent of the total project cost will be withheld and distributed pending
resolution of customer complaints and submittal of the Final Report to the
(SWRCB).
Project Schedule
The project shall be completed in accordance with the following schedule:
Task
General Description
Completion fate
Al -3
HOA Common Area Assessment
Residential Area Assessment
September 2011
A5
Marketing Materials Distributed
October 2011
63
Irrigation System Evaluations
November 2011
B6
Controller Installations
November 2011 to
December 2012
B15
Assist City with preparing
Progress Reports
Quarterly starting
December 2011
B17
Final Report
June 2013
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