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HomeMy WebLinkAbout2015-007 1 RESOLUTION NO. 2015-7 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF CONTRACTOR SERVICES 3 AGREEMENTS WITH ALLSTATE SERVICES AND ENVIRO-TEST DBA SCOTT 4 MORRISON & ASSOCIATES FOR ASBESTOS AND LEAD TESTING; AND WITH WOODY'S DEMOLITION, DAKENO, INC., AND ENVIRONMENTAL KLEAN-UP 5 FOR ON-CALL DEMOLITION SERVICES. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager is hereby authorized and directed to execute a 9 Contractor Services Agreement with Allstate Services and Enviro-Test DBA Scott Morrison & 10 Associates for asbestos and lead testing on an on-call basis; copies of these agreements are 11 attached hereto and marked Attachments "A" and "B", respectively, and incorporated herein. 12 SECTION 2. Additionally the City Manager is hereby authorized and directed to 13 execute a Demolition Contractor Services Agreement with Woody's Demolition, Dakeno, Inc., 14 and Environmental Klean-Up, for on-call demolition services; copies of these agreements are 15 16 attached hereto and marked Attachments "C," "D" and "E," respectively, and incorporated 17 herein. 18 SECTION 3. The Purchasing Manager is hereby authorized to issue a Purchase Order 19 for said services to Allstate Services, Enviro-Test DBA Scott Morrison & Associates, Woody's 20 Demolition, Dakeno, Inc., and Environmental Klean-Up in the aggregate amount of $125,000 21 for asbestos and lead testing and for on-call demolition services. 22 SECTION 4. The authorization to execute the above-referenced agreements is 23 rescinded if the agreements are not executed and returned to the Office of the City Clerk within 24 sixty(60) days following the effective date of this Resolution. 25 HI 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF CONTRACTOR SERVICES 2 AGREEMENTS WITH ALLSTATE SERVICES AND ENVIRO-TEST DBA SCOTT MORRISON & ASSOCIATES FOR ASBESTOS AND LEAD TESTING; AND WITH 3 WOODY'S DEMOLITION, DAKENO, INC., AND ENVIRONMENTAL KLEAN-UP 4 FOR ON-CALL DEMOLITION SERVICES. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 7 20th day of January, 2015,by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ X 10 BARRIOS X 11 VALDIVIA X 12 SHORETT X 13 NICKEL X 14 JOHNSON X 15 16 MULVIHILL X 17 - Georgea Hanna, Ci Clerk 18 19 The foregoing resolution is hereby approved this 3 day ruary, 2015. 20 � 21 R. Carey Davis ayor City of San B rnardino 22 Approved as to form: Gary Saenz, City Attorney 23 24 By: ` 25 2015-7 Exhibit 1 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ALLSTATE SERVICES,LLC FOR ASBESTOS AND LEAD TESTING THIS AGREEMENT is made and entered into this 20th day of January 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Allstate Services, LLC ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for asbestos and lead testing and related work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Asbestos Services as described in RFQ F-15-15 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORS in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warrantv. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORS for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Allstate Services, LLC City Manager 2279 Eagle Glen Parkway, Ste.112-206 300 North"D" Street Corona, CA 92883 San Bernardino, CA 92418 Telephone: (951) 245-3700 Telephone: (909) 384-5122 Facsimile: (951) 245-3753 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assigrunent. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. 7 2015-7 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ALLSTATE SERVICES,LLC FOR ASBESTOS AND LEAD TESTING IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Allstate Services, LLC Allen Parker, City Manager Signature Name and Title ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: 8 2015-7 Exhibit 1 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRO-TEST dba SCOTT MORRISON & ASSOCIATES FOR ASBESTOS AND LEAD TESTING THIS AGREEMENT is made and entered into this 9nrh day of man„a,T , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Enviro-Test dba Scott Morrison& Associates ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for asbestos and lead testing and related work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for Asbestos Services as described in RFQ F-15-15 and the Scope of Services attached hereto as Exhibit "I" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORS in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORS for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Enviro-Test dba Scott Morrison& Assoc. City Manager P.O. Box 55329 300 North"D" Street Riverside, CA 92517 San Bernardino, CA 92418 Telephone: (760) 323-7743 Telephone: (909) 384-5122 Facsimile: none provided Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations,paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. /// HI /// 7 2015-7 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRO-TEST dba SCOTT MORRISON & ASSOCIATES FOR ASBESTOS AND LEAD TESTING IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Enviro-Test dba Scott Morrison&Assoc. Allen Parker, City Manager Signature Name and Title ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney B . 8 2015-7 Exhibit 1 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WOODY'S DEMOLITION THIS AGREEMENT is made and entered into this 20zh day of jnnuar;= , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Woody's Demolition("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for demolition and related abatement work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for On-Call Demolition Services as described in RFQ X-15- 01 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORS in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORS for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. 3 2015-7 (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. 4 2015-7 IF TO CONTRACTOR: IF TO CITY: Woody's Demolition City Manager 9243 8th Avenue 300 North"D" Street Hesperia, CA92345 San Bernardino, CA 92418 Telephone: (760) 559-4567 Telephone: (909) 384-5122 Facsimile: (760) 956-7204 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. 7 2015-7 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WOODY'S DEMOLITION IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Woody's Demolition Allen Parker, City Manager Signature Name and Title ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney By- 8 2015-7 Exhibit 1 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAKENO, INC. THIS AGREEMENT is made and entered into this 20th day of January , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Dakeno, Inc. ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for demolition and related abatement work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.l. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for On-Call Demolition Services as described in RFQ X-15- 01 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORs in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORs for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Dakeno, Inc. City Manager 6021 Tarragona Drive 300 North"D" Street Riverside, CA 92509 San Bernardino, CA 92418 Telephone: (951) 686-6608 Telephone: (909) 384-5122 Facsimile: (951) 686-7342 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations,paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. 7 2015-7 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAKENO, INC. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Dakeno, Inc. Allen Parker, City Manager Signature Name and Title ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney B 8 2015-7 Exhibit 1 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRONMENTAL KLEAN-UP THIS AGREEMENT is made and entered into this day of jan„ r.v - 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city("CITY"), and Environmental Klean-Up ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for demolition and related abatement work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for On-Call Demolition Services as described in RFQ X-15- 01 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORs in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORs for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Environmental Klean-Up City Manager 19069 Van Buren Blvd., #114, PMB 385 300 North"D" Street Riverside, CA 92508 San Bernardino, CA 92418 Telephone: (951) 520-2617 Telephone: (909) 384-5122 Facsimile: (951) 681-5559 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. 7 2015-7 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRONMENTAL KLEAN-UP IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Environmental Klean-Up Allen Parker, City Manager Signature Name and Title ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney B 8 2015-7 Exhibit 1 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRO-TEST dba SCOTT MORRISON & ASSOCIATES FOR ASBESTOS AND LEAD TESTING THIS AGREEMENT is made and entered into this _day of _Tan„a,-3, , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Enviro-Test dba Scott Morrison&Associates ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for asbestos and lead testing and related work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for Asbestos Services as described in RFQ F-15-15 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORs in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warrantv. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORS for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Enviro-Test dba Scott Morrison& Assoc. City Manager P.O. Box 55329 300 North"D" Street Riverside, CA 92517 San Bernardino, CA 92418 Telephone: (760) 323-7743 Telephone: (909) 384-5122 Facsimile: none provided Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Countep2arts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. HI 7 2015-7 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRO-TEST dba SCOTT MORRISON & ASSOCIATES FOR ASBESTOS AND LEAD TESTING IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Enviro-Test dba Scott Morrison&Assoc. Allen Par ,er, City Manager Signature 5'CC O C. FAlvr' Name and Title ATTEST: Georgeann Hanna ity Clerk i APPROVED AS TO FORM: Gary D. Saenz, City Attorney B 8 2015-7 Exhibit 1 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WOODY'S DEMOLITION THIS AGREEMENT is made and entered into this gnr1, day of 7ari,,_� ru , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Woody's Demolition("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for demolition and related abatement work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for On-Call Demolition Services as described in RFQ X-15- 01 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORs in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORs for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. 3 2015-7 (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. 4 2015-7 IF TO CONTRACTOR: IF TO CITY: Woody's Demolition City Manager 9243 8th Avenue 300 North"D" Street Hesperia, CA92345 San Bernardino, CA 92418 Telephone: (760) 559-4567 Telephone: (909) 384-5122 Facsimile: (760) 956-7204 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. /// 7 2015-7 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND WOODY'S DEMOLITION IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Woody's Demolition Allen Parter, City Manager jih�atur l/L Tort ��Y Gyay nJo� S� Name and Title ATTEST: Georgeann Hanqj, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney By- 8 2015-7 Exhibit 1 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAKENO, INC. THIS AGREEMENT is made and entered into this 20th day of January 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Dakeno, Inc. ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for demolition and related abatement work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for On-Call Demolition Services as described in RFQ X-15- 01 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORS in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORs for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Dakeno, Inc. City Manager 6021 Tarragona Drive 300 North"D" Street Riverside, CA 92509 San Bernardino, CA 92418 Telephone: (951) 686-6608 Telephone: (909) 384-5122 Facsimile: (951) 686-7342 Facsimile: (909) 384-5138 5.3. Attorneys' s. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. HI /// /// 7 2015-7 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DAKENO, INC. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Dakeno, Inc. 1,4- /J'1 /4 Allen Par er, City Manager Signature &61�4 /l Name and Title ATTEST: Georgeann Hwda, City Cler , APPROVED AS TO FORM: Gary D. Saenz, City Attorney B 8 ' 2015-7 Exhibit 1 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRONMENTAL KLEAN-UP THIS AGREEMENT is made and entered into this }day of T , , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Environmental Klean-Up ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for demolition and related abatement work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Contractors for On-Call Demolition Services as described in RFQ X-15- 01 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"), the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORS in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented, brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTOR's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORs for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three (3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Environmental Klean-Up City Manager 19069 Van Buren Blvd., #114, PMB 385 300 North"D" Street Riverside, CA 92508 San Bernardino, CA 92418 Telephone: (951) 520-2617 Telephone: (909) 384-5122 Facsimile: (951) 681-5559 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assi nom. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. /// HI 7 ' 2015-7 DEMOLITION CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ENVIRONMENTAL KLEAN-UP IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Environmental Klean-Up 4�0 TNQ(-qt-1 1 Allen Park eiVCity Manager Signature Name and Tile ATTEST: r eorgeann Hu1na, City Cl&k APPROVED AS TO FORM: Gary D. Saenz, City Attorney B 8 2015-7 Exhibit 1 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ALLSTATE SERVICES,LLC FOR ASBESTOS AND LEAD TESTING THIS AGREEMENT is made and entered into this loth day of January , 2015 ("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city ("CITY"), and Allstate Services, LLC ("CONTRACTOR"). WITNESSETH : A. WHEREAS, CITY proposes to have CONTRACTOR perform the services described herein below; and B. WHEREAS, CONTRACTOR represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and CONTRACTOR desire to contract for asbestos and lead testing and related work; and D. WHEREAS, no official or employee of CITY has a financial interest, within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein,the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONTRACTOR 1.1. Scope of Services. For the remuneration stipulated, CONTRACTOR shall provide a Proposal for Asbestos Services as described in RFQ F-15-15 and the Scope of Services attached hereto as Exhibit "1" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement (hereinafter "Agreement"),the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONTRACTOR pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional CONTRACTORs in similar fields and circumstances in accordance with sound professional practices. CONTRACTOR also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONTRACTOR's performance of this Agreement. CONTRACTOR further represents that no CITY employee will provide any services under this Agreement. 1 2015-7 1.3. Warranty. CONTRACTOR warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. CONTRACTOR shall indemnify and hold harmless CITY from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including reasonable attorneys' fees and costs, presented,brought, or recovered against CITY for,or on account of any liability under any of the above-mentioned laws, arising from or related to CONTRACTORs performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONTRACTOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non-Exclusive Agreement. CONTRACTOR acknowledges that CITY may enter into agreements with other CONTRACTORs for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONTRACTOR may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONTRACTOR's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, CONTRACTOR shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the CITY. 1.8 CITY Business Certificate. CONTRACTOR shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONTRACTOR to practice its profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Over the term of this Agreement, CONTRACTOR shall be paid for such services in accordance with the Bid Specifications attached as Exhibit 2. 2 2015-7 2.2. Additional Services. CONTRACTOR shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to CONTRACTOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONTRACTOR may submit invoices to CITY for approval. Said invoice shall be based on the total of all CONTRACTOR's services which have been completed to CITY's sole satisfaction. CITY shall pay CONTRACTOR's invoice within forty- five (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order,where applicable, on all invoices. 2.4. Records and Audits. Records of CONTRACTOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3)years from the Effective Date. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue for three(3) years with the possibility of two 1-year extensions, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or CONTRACTOR may terminate this Agreement for any reason upon thirty (30) days written notice to the other party. In the event of termination, CONTRACTOR shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONTRACTOR in its performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONTRACTOR, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONTRACTOR shall be at CITY's sole risk and without liability or legal expense to CONTRACTOR. 3 2015-7 4.0.INSURANCE 4.1. Minimum Scope and Limits of Insurance. CONTRACTOR shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits,per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to CONTRACTOR'S performance under this contract." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to CITY." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificates of Insurance. CONTRACTOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY,prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which CONTRACTOR may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 4 2015-7 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a)at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONTRACTOR: IF TO CITY: Allstate Services, LLC City Manager 2279 Eagle Glen Parkway, Ste.112-206 300 North"D" Street Corona,CA 92883 San Bernardino, CA 92418 Telephone: (951)245-3700 Telephone: (909) 384-5122 Facsimile: (951) 245-3753 Facsimile: (909) 384-5138 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys'fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. CONTRACTOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of CONTRACTOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release CONTRACTOR of CONTRACTOR's obligation to perform all other obligations to be performed by CONTRACTOR hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. CONTRACTOR shall protect, defend, indemnify and hold harmless CITY and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to CONTRACTOR's performance under this Agreement, except when caused solely by the CITY's negligence. 5 2015-7 5.7. Independent Contractor. CONTRACTOR, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. CONTRACTOR shall secure, at its expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONTRACTOR and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither CONTRACTOR nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, unemployment compensation, medical insurance, life insurance, paid vacations,paid holidays, pension,profit sharing or social security on account of CONTRACTOR and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and CONTRACTOR. 5.8 Conflict of Interest Disclosure. CONTRACTOR 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 financial interests that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participating in making decisions that will have a foreseeable financial effect on such interest. CONTRACTOR shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Responsibility for Errors. CONTRACTOR shall be responsible for its work and results under this Agreement. CONTRACTOR, when requested, shall furnish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONTRACTOR occurs, then CONTRACTOR shall, at no cost to CITY, provide all other CONTRACTOR professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. CONTRACTOR shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party BeneficigU Rights. This Agreement is entered into for the sole benefit of CITY and CONTRACTOR and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or 6 2015-7 accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts,each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate 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 doing so, the parties hereto are formally bound to the provisions of this Agreement. 7 2015-7 CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ALLSTATE SERVICES,LLC FOR ASBESTOS AND LEAD TESTING IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers,as of the date first above written, CITY OF SAN BERNARDINO, CONTRACTOR A Municipal Corporation Allstate Services,LLC Allen P er,City Manager Signature ` Steven Travers,Vice-President Name and Title ATTEST: 1 W_X4 t Georgeann Hg4na,City C e APPROVED AS TO FORM: Gary D. Saenz,City Attorney By: 8