HomeMy WebLinkAbout2012-03-27 City Council Agenda Item No. 0610:11061 :4 S 0 4
TO: HONORABLE MAYOR
AND MEMBERS • THE CITY COUNCIL
FROM: PAT KILROY
INTERIM CITY MANAGER
DATE: MARCH 27, 2012
SUBJECT: ENVIROMINE CONTRACT
I;Tm • 0 •
In January of 2009, the City Council approved a contract with EnviroMine to provide
services related to mine compliance and inspection. The length of the term assigned
was three (3) years, with two (2) optional one (1) year extensions. Annual
compensation was set at $20,000 with additional compensation requiring additional
authorization.
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In 2009, City Council approved a contract with EnviroMine to provide services related to
inspection and SMARA compliance. Shortly thereafter, the City began a lengthy
process with the State Mining and Geology Board (SMGB), questioning the City's Lead
Agency status. Enviromine has been- beneficial in assisting the City with retaining its
Lead Agency status, and in doing so, increased the amount of time spent working on
the City's needs. The original contract limited annual compensation to $20,000. In
January 2011, the City Council approved an additional $20,000 as the City began to
.investigate the issues caused by complaints received from residents regarding mines
within the City's jurisdiction. In June 2011, and October 2011, City Council approved
additional funds in order to meet the increased work load.
At this time, there is still work being done that involves the SMGB. Staff is requesting to
use a one year extension to the Enviromine contract, as well as approve a $40,000
annual limit for this calendar year. As always, all funds for work done by Enviromine are
funded by deposits made to the mine operator's existing CRS accounts, as per
Municipal Code 14.04.230.
UT,C]A Z 10 mlk-d 4
Enviromine Contract
March 27, 2012
Page 2
Fiscal Impact
There is no direct fiscal impact to the General Fund because the services being
provided are funded through deposits made by the mine operators for the purposes of
compliance inspection.
Recommendations
1. Staff recommends that the City Council extend the contract for another year and
approve the annual compensation in the amount of $40,000.
2. Authorize staff to process the purchase order.
Prepared by: Dina Purvis
Engineering Technician
Ken Seumalo 4*S
Director of Public Works
Approved by: Pat Kilroy
Interim City Manager
Attachment: 2009 Contract
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[EnviroMine, Inc.]
This Agreement for Professional Services (the "Agreement") is made- and entered into as of
the 13th day of January, 2009, by and between the City of Lake Elsinore, a municipal corporation
("City") and EnviroMM, Inc., a California corporation ("Consultant").
RECITALS
A. Consultant is specially trained, experienced and competent to perform the special services.
which will be required by this Agreement.
B. Consultant possesses the skill, experience, ability, background, certification and knowledge
to provide the services described in this Agreement on the terms and conditions described herein.
C. City desires to retain Consultant to render professional consulting services and related work
as set forth in this Agreement.
FAT
1. Scope of Services. Consultant shall.perform the services described on Exhibit A which is
attached hereto and incorporated herein by reference. Consultant shall provide said services at the
time, place, and in the manner specified in Exhibit A, subject to the direction of the City through its
staff that it may provide from time to time.
2. Time of Performance. The services of Consultant are to commence upon execution of this
Agreement and shall continue for a period of three (3) years, with two (2) optional one (1) year
extensions.
3. Com-pensation. Compensation to be paid to Consultant shall be in accordance with the
Schedule of Charges set forth in Exhibit B, which is attached hereto and incorporated herein by
reference. In no event shall Consultant's annual compensation exceed $20,000.00 without additional
authorization from the City. Payment by City under this Agreement shall not be deemed a waiver of
defects, even if such defects were known to the City at the time of payment. All Consultant services
are provided on a time and materials basis.
4. Method of Payment. Consultant shall submit monthly billings to City describing the work
performed during the preceding month. Consultant's bills shall include a brief description of the
services performed, the date the services were performed, the number of hours spent and by whom,
and a description of any reimbursable expenditures. City shall pay Consultant no later than 30 days
after approval of the monthly invoice by City staff.
5. Extra Work. At ' any time during the term of this Agreement, City may request that
Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined
by City to be necessary for the proper completion of the Project, but which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not
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perform, nor be compensated for, Extra Work without written authorization from City. Extra work
will be invoiced separately from services performed in accordance with the Scope of Services
..
6. Termination. This Agreement may be terminated by the City immediately for cause or by
either party without cause upon thirty (30) days' written notice of termination. Upon termination,
Consultant shall be entitled to compensation for services performed up to the effective date of
termination.
7. Ownership of Documents. All plans, studies, documents and other writings prepared by and
for Consultant, its officers, employees and agents and subcontractors in the course of implementing
this Agreement, except working notepad internal documents, shall become the property of the City
upon payment to Consultant for such work, and the City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or to any other party.
Consultant shall., at Consultant's expense, provide such reports, plans, studies, documents and other
writings to City upon written request. City acknowledges that any use of such materials in a manner
beyond the intended purpose as set forth herein shall be at the sole risk of the City. City further
agrees to defend, indemnify and hold han-nless Consultant, its officers, officials, agents, employees
and volunteers from any claims, demands, actions, losses, damages, i M* *uries, and liability, direct or
indirect (including any and all costs and expenses in connection therein), arising out of the City-s
use of such materials in a manner beyond the intended purpose as set forth herein.
a. Licensing of Intellectual Property. This Agreement creates a nonexclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs,
and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and
other documents or works of authorship fixed in any tangible medium of expression, including but
not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes,
which are prepared or caused to be prepared by Consultant under this Agreement ("Documents &
Data"). Consultant shall require that all subcontractors agree in writing that City is granted a
nonexclusive and perpetual license for any Documents & Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any and
all Documents & Data. Consultant makes no such representation and warranty in regard to
Documents & Data which'were prepared by design professionals other than Consultant or provided
to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at
any time, provided that any such use not within the purposes intended by this Agreement shall be* at
City's sole risk.
b. C All ideas, memoranda, specifications, plans, procedures, drawings,
descriptions., computer program data, input record data, written information, and other Documents &
Data either created by or provided to Consultant in connection with the performance of this
Agreement shall be held confidential by Consultant. Such materials shall not, without the prior
written consent of City, be used by Consultant for any purposes other than the performance of the
services under this Agreement. Nor shall such materials be disclosed to any person or entity not
connected with the performance of the services under this Agreement. Nothing furnished to
Consultant which is otherwise known to Consultant or is generally known, or has become known, to
the related industry shall be deemed confidential. Consultant shall not use City's name or insignia,
photographs relating to project for which Consultant's services are rendered, or any publicity
pertaining to the Consultant's services under this Agreement in any magazine, trade paper,
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newspaper, television or radio production or other similar medium without the prior written consent
of City.
a. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers,
canceled checks, and other records or documents evidencing or relating to charges for services, or
expenditures and disbursements charged to City for a n" =`urn period of three (3) years, or for any
longer period required by law, from the date of final payment to Consultant to this Agreement. -
b. Consultant shall maintain all documents and records which demonstrate performance
under this Agreement for a minimum period of three (3) years, or for any longer period required by
law, from the date of termination or completion of this Agreement.
C. Any records or documents required to be maintained pursuant to this Agreement shall
be made available for 'inspection or audit, at any time during regular business hours, upon written
request by the City Manager, City Attorney, City Auditor or a designated representative of these
officers. Copies of such documents shall be provided to the City for *inspection at City Hall when it is
practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be
available at Consultant's address indicated for receipt of notices in this Agreement.
d. Where City has reason to believe that such records or documents may be lost or
discarded due to dissolution, disbandment or termination of Consultant's business, City may, by
written request by any of the above-named officers, require that custody of the records be given to
the City and that the records and documents be maintained in City Hall. Access to such records and
documents shall be granted to any party authorized by Consultant, Consultant's representatives,, or
Consultant's successor-in-interest.
9. Ind endent Contractor. It is understood that Consultant, in the performance of the work and
services agreed to be performed, shall act as and be an 'independent contractor and shall not act as an
agent or employee of the City. Consultant shall obtain no rights to retirement benefits or other
benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may
have to any such rights.
10. Interests of Consultant. Consultant (including principals, associates and professional
employees) covenants and represents that it does not now have any "investment or interest in real
property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement
or any other source of income, interest in real property or investment which would be affected in any
manner or degree by the performance of Consultant's services hereunder. Consultant further
covenants and represents that in the performance of its duties hereunder no person having any such
interest shall perform any services under this Agreement.
Consultant is not a designated employee within the meaning of the Political Refonn Act
because Consultant:
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a. will conduct research and arrive at conclusions with respect to his/her rendition of
information, advice, recommendation or counsel independent of the control and direction of the City
or of any City official, other than normal agreement monitoring; and
f..
b. possesses no authority with respect to any City decision beyond rendition of
information, advice, recommendation or counsel. {FPPC Reg. 18700(a)(2).)
11. Professional Abilit y of Consultant. City has relied upon the professional training and ability
of Consultant to perform the services hereunder as a material inducement to enter into this
Agreement. Consultant shall therefore provide properly skilled professional and technical personnel
to perform all services under this Agreement. All work performed by Consultant under this
Agreement shall be in accordance with applicable legal requirements and shall meet the standard of
quality ordinarily to be expected of competent professionals in Consultant's field of expertise'.
12. Compliance with Laws. Consultant shall use the standard of care in its profession to comply
with all applicable federal, state and local laws, codes, ordinances and regulations.
13. Licenses. Consultant represents and warrants to City that it has the licenses, permits,
quali fications, insurance and approvals ofwhatsoever nature which are legally required of Consultant
to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole
cost and expense, keep in effect or obtain at all times during the term of this Agreement, any
licenses, permits, insurance and approvals which are legally required of Consultant to practice its
profession.
14. Indemnity. Consultant agrees to indemnify and hold harmless the City, its officers, officials,
agents, employees and volunteers from and against any and all claims, demands, actions, losses,
damages, injuries, and liability, direct or indirect (including costs and expenses in connection
therein), to the extent arising out of the negligent performance of services under this Agreement,
except for any such claim arising out of the sole negligence or willful misconduct of the City; its
officers, agents, employees or volunteers.
15. Insurance Requirements.
rements.
a. Insurance. Consultant, at Consultant's own cost and expense, shall procure and
maintain, for the duration of the contract, the following insurance policies.
i. Workers' compensation Coverage, Consultant shall maintain Workers'
Compensation Insurance and Employer's Liability Insurance for his/her employees in
accordance with the laws of the State of California. In addition, Consultant shall
require each subcontractor to similarly maintain Workers' Compensation Insurance
and Employer's Liability Insurance in accordance with the laws of the State of
California for all of the subcontractor's employees. Any notice of cancellation or
non-renewal of all Workers' Compensation policies must be received by the City at
least thirty (30) days prior to such change. The insurer shall agree to waive all rights
of subrogation against City, its officers, agents, employees and volunteers for losses
arising from work performed by Consultant for City.
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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. If a commercial
general liability insurance form or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit.
iii. Automobile Iliability_Coverage. Consultant shall maintain automobile
liability insurance cove-ring bodily injury and property damage for all activities ofthe
Consultant arising out of or in connection with the work to be performed under this
Agreement, including coverage for hired and non-owned vehicles, in an amount of
not less than one million dollars ($1,000,000) combined single limit for each
occurrence. It is understood that the Consultant does not own any vehicles.
iv. Professional Liabilit y Coverage. Consultant shall maintain professional
errors and omissions liability insurance for protection against claims alleging
negligent acts, errors or omissions which may arise from Consultant's operations
under this Agreement, whether such operations by the Consultant or by its
employees, subcontractors, or subconsultants. The amount of this insurance shall not
be less than one million dollars ($1,000,000) on a claims-made Annual aggregate
basis, or a combined single limit per occurrence basis.
b. Endorsements. Each general liability and automobile liability insurance policy shall
be with insurers possessing a Best=s rating of no less than ANH and shall be endorsed with the
following specific language:
i The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insureds with respect to liability arising out
of work performed by or on behalf of the Consultant, including materials, parts or
equipment furnished in connection with such work or operations.
ii. This policy shall be considered primary insurance as respects the City? ..its
elected or appointed officers, officials, employees, I agents and volunteers. Any
insurance maintained by the City, including any self-insured retention the City may
have, shall be considered excess insurance only and shall not contribute with it. -
iii. This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of liability
of the insuring company.
iv. The insurer waives all rights of subrogation against the City, its elected or
appointed officers, officials, employees or agents.
vi. The insurance provided by this Policy canceled except after thirty (30) days
written notice has been received by the City and I O-day notice for nonpayment ofthe
premium.
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C. Deductibles and Self - Insured. Retentions. Any deductibles or self-insured retentions
must be declared to and approved by the City. At the City's option, Consultant shall demonstrate
financial capability for payment of such deductibles, or self-insured retentions.
d. Certificates of Insurance. Consultant shall provide certificates of insurance with
original endorsements to City as evidence of the insurance coverage required herein. Certificates of
such insurance shall be filed with the City on or before commencement of performance of this
Agreement. Current certification of insurance shall be kept on file with the City at all times during
the term of this Agreement.
16. Notices. Any notice required to be given under this Agreement shall be in writing and either
served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other
party at the address set forth below. Notice shall be deemed communicated within 48 hours from the
time of mailing if mailed as provided in this section.
If to City: City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92530
If to Consultant.- EnviroMRqE, Inc.
Attn: Warren R. Coalson, President
3511 Camino Del Rio South, Suite 403
San Diego, CA 92108
17. Entire Ageem+ent. This Agreement constitutes the complete and exclusive statement of
Agreement between the City and Consultant. All prior written and oral communications, including
correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement.
18. 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.
19. Assignment and Subcontracting. The parties recognize that a substantial inducement to City
for entering into this Agreement is the professional reputation, experience and competence of
Consultant and the subcontractors listed in Exhibit D. Consultant shall be fully responsible to City
for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations
of the Consultant under this Agreement will be permitted only with the express consent of the City.
Consultant shall not subcontract any portion of the work to be performed under this Agreement
except as provided in Exhibit D without the written authorization of the City. If City consents to
such subcontract, Consultant shall be fully responsible to City for all acts or omissions of those
subcontractors. Nothing in this Agreement shall create any contractual relationship between City and
any subcontractor nor shall it create any obligation on the part of the City to pay or to see to the
payment of any monies due to any such subcontractor other than as otherwise is required by law.
20. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing
waiver of a subsequent breach of the same or any other provision under this Agreement.
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21. Severabili y. 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.
22. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by
the laws of the State of California and any action brought relating to this Agreement shall be held
exclusively in a state court in the County of Riverside.
N - -
24. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out
of this Agreement through mediation prior to commencing litigation. The parties shall mutually
agree upon the mediator and share the costs of mediation equally. If the parties are unable to agree
upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS') or its successor in
interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall
have the option to strike two of the five mediators selected by JAMS and thereafter the mediator
remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may
commence litigation.
25. Execution. This Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument and shall become binding upon the parties when at least one
copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not
be necessary to produce or account for more than one such counterpart.
26. Authority to Enter .Agreement. Consultant has all requisite power and authority to conduct its
business and to execute, deliver, and perform the Agreement. Each party warrants that the
individuals who have signed this Agreement have the legal power, right, and authority to make this
Agreement and to bind each respective party.
27. Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for Consultant, to solicit or
secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any
company or person, other than a bona fide employee working solely for Consultant, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from
the award or making of this Agreement. For breach or violation of this warranty, City shall have the
right to rescind this Agreement without liability. For the term of this Agreement, no member, officer
or employee of City, during the term, of his or her service with City, shall have any direct interest in
this Agreement, or obtain any present or anticipated material benefit arising therefrom.
28. equal iL E
mty m
p j:L ployMent. 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. Such
non-discrimination shall include, but not be limited to, all activities related to initial employment,
upgrading, demotion, transfer., recruitment or recruitment advertising, layoff or termination'.'
Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise
program, Affirmative Action Plan or other related programs or guidelines currently in effect or
hereinafter enacted.
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IN WITNESS WHEREOF the parties have caused this Agreement to be executed on the date
first written above.
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