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HomeMy WebLinkAboutProactive Consulting Group LLC; 2022-09-27; PSA23-1984FACPSA23-1984FAC City Attorney Approved Version 8/2/2022 1 AGREEMENT FOR POLICE AND FIRE HEADQUARTERS SPCC PLAN SERVICES PROACTIVE CONSULTING GROUP, LLC THIS AGREEMENT is made and entered into as of the ______________ day of ___________________, 2022, by and between the City of Carlsbad, a municipal corporation ("City") and Proactive Consulting Group, LLC, a California limited liability company ("Contractor”). RECITALS City requires the professional services of an environmental consulting services consultant that is experienced in environmental spill prevention control measures consulting services. Contractor has the necessary experience in providing these professional services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the “Services”) that are defined in Exhibit “A”, attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. TERM This Agreement will be effective for a period of one (1) year from the date first above written. 3. COMPENSATION The total fee payable for the Services to be performed will be three thousand eight hundred dollars ($3,800). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit “A.” 4. STATUS OF CONTRACTOR Contractor will perform the Services as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney’s fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C September 27th PSA23-1984FAC City Attorney Approved Version 8/2/2022 2 6. INSURANCE Contractor will obtain and maintain policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non- admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report, in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the Risk Manager or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims- made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General Liability which shall provide primary coverage to the City. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City’s execution of this Agreement. 7. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 8. COMPLIANCE WITH LAWS Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. 9. TERMINATION City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. 10. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq., and Carlsbad Municipal Code Sections 3.32.025, et seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 11. JURISDICTIONS AND VENUE Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 12. ASSIGNMENT Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C PSA23-1984FAC City Attorney Approved Version 8/2/2022 3 13. AMENDMENTS This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 14. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR PROACTIVE CONSULTING GROUP, LLC a California limited liability company CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) Paz Gomez, Deputy City Manager, Public Works, as authorized by the City Manager Patrick T. Luu, Senior Manager (print name/title) By: (sign here) (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A. Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CINDIE K. McMAHON, City Attorney By: Assistant City Attorney DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C (J.~ t PSA23-1984FAC City Attorney Approved Version 8/2/2022 4 EXHIBIT “A” SCOPE OF SERVICES Contractor shall prepare a site-specific Spill Prevention Control and Countermeasure (SPCC) plan for the emergency generator diesel storage tank for the Police and Fire Headquarters Building located at 2560 Orion Way, Carlsbad, CA. DESCRIPTION PRICE Review documents and prepare site specific Spill Prevention Control and Countermeasure (SPCC) plan to comply with the California Aboveground Petroleum Storage Act, Federal EPA (40 CFR 112) Spill Prevention Control and Counter-measure Program Requirements. $3,800 TOTAL $3,800 . DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C 07/14/2022 Cornerstone Specialty Insurance Services, Inc. 14252 Culver Drive, A299 Irvine CA 92604 Aimee Guesno (714) 731-7700 (714) 731-7750 aimee@cornerstonespecialty.com PROACTIVE CONSULTING GROUP, LLC 15235 Springdale St. Huntington Beach CA 92649 Continental Casualty Company 20443 American Cas.Co. of Reading PA 20427 22/23 COVERAGES A ADDT'L INSURED / P & NC BLNKT WVR OF SUBRO 2084330890 07/28/2022 07/28/2023 2,000,000 1,000,000 10,000 2,000,000 4,000,000 4,000,000 A 2084330890 07/28/2022 07/28/2023 1,000,000 B Y 4024152345 07/28/2022 07/28/2023 1,000,000 1,000,000 1,000,000 A PROFESSIONAL LIABILITY Claims Made EEH288355962 07/28/2022 07/28/2023 EACH CLAIM $2,000,000 ANNUAL AGGREGATE $2,000,000 Re: Generator Permitting Consulting Services Fire Station 7 : PSA22-1870FAC The City of Carlsbad is Additional Insured for General Liability but only if required by written contract with the Named Insured prior to an occurrence and asper attached endorsement. Coverage is subject to all policy terms and conditions. *30 days notice of cancellation, except for 10 days notice for non-payment of premium. For Professional Liability coverage, the aggregate limit is the total insurance available for all covered claims reported within the policy period. City of Carlsbad/CMWD c/o EXIGIS Insurance Compliance Services P.O. Box 947 Murrieta CA 92564 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCEDAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C ACORD® I ~ I X I [8] X X - ~ [8] □ - -- --X X -H I I XI I I □ Workers Compensation And Employers Liability Insurance Policy Endorsement BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS This endorsement changes the policy to which it is attached. It is agreed that Part One - Workers’ Compensation Insurance G. Recovery From Others and Part Two - Employers’ Liability Insurance H. Recovery From Others are amended by adding the following: We will not enforce our right to recover against persons or organizations. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) PREMIUM CHARGE - Refer to the Schedule of Operations The charge will be an amount to which you and we agree that is a percentage of the total standard premium for California exposure. The amount is 2%. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. Endorsement No: 3; Page: 1 of 1 Underwriting Company: American Casualty Company of Reading, Pennsylvania, 151 N Franklin St, Chicago, IL 60606 Form No: G-19160-B (11-1997) Endorsement Effective Date: Policy No: WC 4 24152345 Policy Effective Date: 07/28/2022 Policy Page: 33 of 48 Endorsement Expiration Date: © Copyright CNA All Rights Reserved. DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C CNA II SB300176E (Ed. 10-19) Page 1 of 3 Copyright, CNA All Rights Reserved. INSURED: Proactive Consulting Group, LLC POLICY PERIOD: 7/28/2022 – 7/28/2023 POLICY NUMBER: 2084330890 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED WITH PRODUCTS-COMPLETED OPERATIONS COVERAGE AND BLANKET WAIVER OF SUBROGATION / AGGREGATE LIMIT (PER PROJECT) This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM BUSINESSOWNERS COMMON POLICY CONDITIONS 1. Blanket Additional Insured with Products-Completed Operations Coverage and Blanket Waiver of Subrogation A. Who Is An Insured is amended to include as an insured, any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement, but the written contract or written agreement must be: 1. Currently in effect or becoming effective during the term of this policy; and 2. Executed prior to the: a. "Bodily injury" or "property damage"; or b. Offense that caused the "personal and advertising injury;" for which the additional insured seeks coverage. B. The insurance provided to the additional insured is limited as follows: 1. That person or organization is an additional insured only with respect to such person or organization's liability for: a. "Bodily injury", "property damage" or "personal and advertising injury to the extent caused by: (1) Your acts or omissions; or (2) Acts or omissions of those acting on your behalf; in the performance of your ongoing operations specified in the written contract; or b. "Bodily injury" or "property damage" to the extent caused by "your work" specified in the written contract or written agreement and included in the "products-completed operations hazard", but only if: (1) The written contract or written agreement requires you to provide the additional insured such coverage; and (2) This Coverage Part provides such coverage. 2. The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy, whichever is less. These limits of Insurance are inclusive of, and not in addition to, the Limits of Insurance shown in the Declarations. 3. The insurance provided to the additional insured does not apply to "bodily injury," "property damage," "personal and advertising injury" arising out of an architect's, engineer's, or surveyor's rendering of or failure to render any professional services, including: DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C C'NA SB300176E (Ed. 10-19) Page 2 of 3 Copyright, CNA All Rights Reserved. a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications by any architect, engineer or surveyor performing services on a project of which you serve as a construction manager; or b. Inspection, supervision, quality control, engineering or architectural services done by you on a project of which you serve as construction manager. 4. This insurance provided to the additional insured does not apply to "bodily injury," "property damage," or "personal and advertising injury" arising out of construction or demolition work while you are acting as a construction or demolition contractor. C. With respect only to the insurance provided by this endorsement, the condition entitled Other Insurance of the BUSINESSOWNERS COMMON POLICY CONDITIONS is amended to delete paragraphs 2. and 3., and replace them with the following: 2. This insurance is excess over any other insurance available to the additional insured, whether primary, excess, contingent or on any other basis. But if required by the written contract or written agreement, this insurance will be primary and noncontributory relative to insurance on which the additional insured is a Named Insured. 3. When this insurance is excess, we will have no duty under Business Liability insurance to defend the additional insured against any "suit" if any other insurer has a duty to defend the additional insured against that "suit" if no other insurer defends, we will undertake to do so, but we will be entitled to the additional insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and self-insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. D. Additional Insured – Extended Coverage When an additional insured is added by this or any other endorsement attached to this Coverage Part, Who Is An Insured is amended to make the following natural persons insureds. If the additional insured is: a. An individual, then his or her spouse is an insured; b. A partnership or joint venture, then its partners, members and their spouses are insureds; c. A limited liability company, then its members and managers are insureds; or d. An organization other than a partnership, joint venture or limited liability company, then its executive officers, directors and shareholders are additional insureds; but only with respect to locations and operations covered by the additional insured endorsement's provisions, and only with respect to their respective roles within their organizations. Please see the Estates, Legal Representatives and Spouses provision of this endorsement for additional coverage and restrictions applicable to spouses of natural person insureds. E. Blanket Waiver of Subrogation The condition entitled Transfer of Rights of Recovery Against Others To Us of the BUSINESSOWNERS COMMON POLICY CONDITIONS is amended to delete paragraph 2. and replace it with the following: 2. We waive any right of recovery we may have against any person or organization against whom you have agreed to waive such right of recovery in a written contract or agreement because of payments we DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C C'NA SB300176E (Ed. 10-19) Page 3 of 3 Copyright, CNA All Rights Reserved. make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included within the "products-completed operations hazard." 2. Amendment- Aggregate Limits of Insurance (Per Project) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Coverage A.1., and for all medical expenses caused by accidents under Coverage A.2., which can be attributed only to ongoing operations at a single construction project: 1. A separate Construction Project General Aggregate limit applies to each construction project. The Construction Project General Aggregate limit is equal to the amount of the General Aggregate limit shown in the Declarations. 2. The Construction Project General Aggregate limit is the most we will pay for the sum of all damages payable under Coverage A.1., except damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard," and for medical expenses payable under Coverage A.2. regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits." 3. Any payments made under Coverage A.1. for damages or under Coverage A.2. for medical expenses shall reduce the Construction Project General Aggregate limit for the applicable construction project. Such payments shall not reduce the General Aggregate limit shown in the Declarations nor shall they reduce any Construction Project General Aggregate limit applicable to other construction projects. 4. The limits shown in the Declarations for Liability and Medical Expenses, Damage to Premises Rented to You, and Medical Expenses continue to apply. However, instead of being subject to the General Aggregate limit shown in the Declarations, such limits will be subject to the applicable Construction Project General Aggregate limit. B. All: 1. Damages because of "personal and advertising injury", regardless of the number of construction projects involved; 2. Damages under Coverage A.1. which cannot be attributed solely to ongoing operations at a single construction project, except damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard"; and 3. Medical expenses under Coverage A.2. caused by accidents which cannot be attributed solely to ongoing operations at a single construction project; will reduce the General Aggregate Limit shown in the Declarations, and shall not reduce any Construction Project General Aggregate Limit. C. When coverage for liability arising out of the "products-completed operations hazard" is provided, any payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products/Completed Operations Aggregate limit, and not reduce the General Aggregate limit nor any Construction Project General Aggregate limit. D. If a construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. E. The provisions of the Limits Of Insurance section not otherwise modified by this endorsement shall continue to apply as stipulated. All other terms and conditions of the Policy remain unchanged. DocuSign Envelope ID: E45B2F82-3C43-4EE1-B63C-E33ED14CA08C C'NA