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HomeMy WebLinkAbout05964 - INFOTOX INC FIRE TRAINING CENTER ASBESTOS & LEAD TESTING CP 09-09 Kathie Hart From: Carrie Rovney Sent: Wednesday, May 01, 2013 5:03 PM To: Kathie Hart; Tabitha Richards; Savat Khamphou; Dave Barakian Cc: Jay Thompson Subject: RE: A5964- Infotox (Fire Training Ctr., Mold/Asbestos Testing, CP 09-08) Yes, you may close this, as we made all payments and closed the corresponding PO � eank,;, From: Kathie Hart Sent: Wednesday, May 01, 2013 5:00 PM To: Carrie Rovney; Tabitha Richards; Savat Khamphou; Dave Barakian Cc: Jay Thompson Subject: A5964 - Infotox (Fire Training Ctr., Mold/Asbestos Testing, CP 09-08) Has the work on this been completed? This agreement expired May 2010. May I close this file? Please advise. Kathie Hart, CMG' Chief Deputy City Clerk City of Palm Springs fP(760)323-8206 3200 F. Tohquitz Canyon Way J(760)322-8332 Palm Springs, CA 92262 �OKathie.Hart@PalmSnrinasCA.gg Please note that City Hall is open 8 a.m. to 6 p.rn.Manday through Thursday,and closed on Fridays at this time. t i PROFESSIONAL SERVICES AGREEMENT Infotox, inc. —Asbestos and Lead Based Paint Investigations Palm Springs Fire Training Center Modular Building Demolition i s i THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered ! into this day of�, 2010, by and between the City of Palm Springs, a California Charter City("City"), and Infotox, I c., a California Corporation, ("Consultant"). i RECITALS I A. City requires the services of a Consultant for Commercial Structure Asbestos and Lead Surveys, Fire Department Training Center Modular Structure Demolition ("Project"). B. Consultant has submitted to City a proposal to provide said professional services pursuant to the terms of this Agreement. 4 i C. Based on its experience and reputation, Consultant is qualified to provide the necessary services for the Project and desires to provide such services. D. City desires to retain the services of Consultant for the Project. E 4 NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, City agrees to employ and does hereby employ Consultant and Consultant agrees to provide professional services as follows: i AGREEMENT E k 1. PROFESSIONAL SERVICES 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide professional staff services as described in the Scope of Services attached to this Agreement as Exhibit "A." Consultant warrants that all services shall be performed in a competent, professional, and satisfactory manner in accordance with all standards prevalent in the industry. In the event of any inconsistency between the terms contained in the Scope of Services and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.2 Com liance with Law. All services rendered under this Agreement shall.be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of City and any federal, state or local governmental agency of competent jurisdiction. 1.3 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. - -._....._.................--........_..---....----................_._......-------......_.............._._,__.................._...._. .. . f 1 f 1.4 Familiarity with Work. s By executing this Agreement, Consultant warrants that Consultant has carefully r considered how the work should be performed and fully understands the facilities, difficulties, and i restrictions attending performance of the work under this Agreement. f 2. TIME FOR COMPLETION The time for completion of the services to be performed by Consultant is an essential condition of this. Agreement. Consultant shall prosecute regularly and diligently the work of this I Agreement according to the agreed upon scheduie.set forth in Section 4.2. Consultant shall not be accountable for delays in the progress of its work caused by any condition beyond its control and without the fault or negligence.of Consultant. Delays shall not entitle Consultant to any additional compensation regardless of the party responsible for the delay. 3. COMPENSATION OF CONSULTANT 3.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated and reimbursed, in accordance with the terms set forth in the Scope of Services, in an amount not to exceed $1,550. 3.2 Method of Payment. An invoice shall be submitted for services rendered to the Contract Officer.. IPayments shall be based on the rates as set forth in Exhibit "A"for authorized services performed. City shall pay Consultant for all expenses stated thereon, which are approved by City consistent with this Agreement, within thirty (30), days of receipt of Consultant's invoice. There shall be a maximum of one payment per month. 3.3 Changes. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional fees. Addenda may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 3.4 Approoriations. This Agreement is subject to and contingent upon funds being appropriated therefore by the City Council of City for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence. Time is of the essence in the performance of this Agreement. 4.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within the time periods indicated in "Exhibit A" mutually agreed to by the parties. The extension of any time period must be approved in writing by the Contract Officer. 4.3 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 4.4 Term. Unless earlier terminated in accordance with Section 9.5 of this Agreement, this Agreement shall continue in full force and effect for a period of one year, commencing on May 17, 2010, unless extended by mutual written agreement of the parties. 5. COORDINATION OF WORK 5.1 Representative of Consultant. The following principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Michael A. Nieuwlandt, President, Certified Asbestos Consultant No. 92-0271. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing principal may not be changed by Consultant without the express written approval of City. 5.2 Contract Officer. The Contract Officer shall be David Barakian, Director of Public Works/City Engineer, or his designee. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any 3 i i I t i I 1 I decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval•of City required hereunder shall mean the approval of the Contract Officer. i f E If{ 5.3 Prohibition Against Subcontracting or Assignment. j I � The experience, knowledge, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services i required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent Consultant of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 6. INSURANCE Consultant shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in Exhibit "B which is attached hereto and is incorporated herein by reference. 7. INDEMNIFICATION. To the fullest extent permitted by law, Consultant shall defend (at Consultant's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liability, actions, suits, proceedings, claims, demands, losses, costs, judgments, damages, expenses, including legal costs and attorneys' fees, and causes of action for injury to or death of person or persons, for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance, and for errors and omissions committed by Consultant, its officers, employees, representatives, and agents, arising out of or related to Consultant's performance under this Agreement. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability hereunder. 8. RECORDS AND REPORTS 8.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 8.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 1 I i 8.3 Ownership of .Documents. All :drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or , additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. f 8.4 Release of Documents, All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 8.5 Cost Records. Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred while performing under this Agreement and shall make such materials available at its offices at all reasonable times ! during the term of this Agreement and for three (3) years from the date of final payment for inspection by City and copies thereof shall be promptly furnished to City upon request. 9. ENFORCEMENT OF AGREEMENT i 9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this E Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 9.2 Waiver. No delay or omission in the exercise of any right or remedy of a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant, Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 9.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 9.4 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any. default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 9.5 Termination Prior to Expiration of Term, City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of .Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved•by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer I i 1 I { 1 f 1 thereafter. Consultant may terminate this Agreement,,with or without cause, upon thirty(30) days written notice to City. 10. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION g p 10.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Consultant or its successor, or for i I breach of any obligation of the terms of this Agreement. 10.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its i heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. 11. MISCELLANEOUS PROVISIONS 11.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as i provided in this Section. i To City: City of Palm Springs Attention: Public Works Director 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 To Consultant: Infotox, Inc Attention: Michael A. Nieuwlandt, President 9251 Orco Parkway, Suite J Riverside, CA 92509 11.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 11.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 11.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid. or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 11.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. i i 1 IN WITNESS WHEREOF, the parties have executed this'Agreement as,of the dates stated below. f "CITY" City OF PALM SPRINGS Date (P By: I David J. Barakian, City Engineer { APPROVED AS TO FORM. ATTEST: I I By: oe City orney P City Clerk eL r q l COI v "CONSULTANT" lnfotox, Inc. Date: i3 U By :`w r /1 Michael A. Ajeuwlandt, President i i t i I Exhibit."A" I Scope of Services I I ! Professional services shall consist of collection of bulk material samples from the Palm Springs Fire Training Center modular building to identify potential asbestos and lead containing materials. 1 The survey shall be performed in accordance with CAL/OSHA and South Coast Air Quality Management District regulations. Collected samples of asbestos containing materials shall be submitted to a NVLAP approved laboratory for analysis by Polarized Light Microscopy (PLM). Surfaces likely to be disturbed during demolition activities will be tested for the presence of lead i based paint (LBP) using non-destructive XRF technology. All lead testing shall be performed by a state certified lead inspector / risk assessor. Testing shall be in compliance with 1997 HUB guidelines and Title 17, California Code of Regulations, Division 1, Chapter 8, effective March 30, 1998. Any test results within the uncertainty range of interpretation will require discreet testing by Atomic Absorption (AA) conducted by an independent state approved NVLAP lab using USEPA method 7420. r. i. It is understood that the Lead Based Paint survey will be conducted by AAA Lead Consultants and Inspections under the direction of Infotox, Inc. The above-described services shall be provided for the following fees: Asbestos Survey E j . Inspection services, supplies and report preparation $ 450 lump sum • Laboratory analysis of bulk material samples $ 500 o (25 samples @ $20 each) I Asbestos Total $ 950 Lead Survey • LBP inspection services, supplies, verification bulk sample $ 500 lump sum • Confirming paint chip sample analysis $ 100 o (5 samples @ $20.00) Lead Total $ 600 Cost Summary Asbestos Total $950 Lead Total KOO Total Not to Exceed $1,550 "EXHIBIT A" Scope of Services (cont.) The surveys shall be completed in one calendar day. The complete reports shall be delivered within 10 working days following completion of the survey. EXHIBIT"B" INSURANCE ; F Consultant shall procure and maintain, at its sole cost and expense, and submit i concurrently with its execution of this Agrdement, in a form and content satisfactory to City, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California workers' compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including t any extension thereof, and shall not be cancelable without thirty (30) days written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. A. Minimum Scope of Insurance. The minimum amount of insurance required hereunder shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000) combined single limit coverage per occurrence; i 2. Automobile liability insurance with limits of at least five hundred thousand dollars ($500,000) per occurrence; i 3. Workers' Compensation insurance in the statutory amount as required by the State of California and Employer's liability Insurance with limits of at least one million dollars ($1,000,000) per occurrence. For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. For Workers' Compensation and Employer's Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. B. Sufficiency of Insurers. Insurance required herein shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VIII, or better, unless otherwise acceptable to the City. C. Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. 1 i i EXHIBIT "B" i INSURANCE (cont.) ! Verification of Insurance Coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement (see attached) with the following endorsements stated on the certificate: P "I. "The City of Palm Springs, its officials, employees and agents are named as an additional � insured" ("as respects a specific contract" or "for any and all work performed with the City" may be included in this statement)."This This insurance is primary and non-contributory over any insurance or self-insurance the City may have" ("as respects a specific contract" or"for any and all work performed with the City" may be included in this statement). 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no i obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. See example below. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waive of subrogation in favor of City, its elected officials, officers, employees, agents and i volunteers. See example below. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policy. All certificates and endorsements are to be received and approved by the City before work commences. Failure to obtain the required documents prior to the commencement of work shall not waive the contractor's obligation to provide them. D. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected officials, officers, employees, agents, and volunteers; or, Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. E. SeyerabilitVof Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer's liability.