HomeMy WebLinkAboutAGR-7175 - MASEK CONSULTING SERVICES INC - ASBESTOS, LEAD AND MISCELLANEOUS TOXIC MATERIALS TESTING & SURVEY SERVICESPROFESSIONAL SERVICES AGREEMENT
Asbestos,Lead and Miscellaneous Toa ic Materials Testing& Survey Services]
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this S day of Gvt !` , 2021 (the "Effective Date") by and
between the CITY OF ORANGE, a municipal corpora,'on("City"), and MASEK CONSULTING
SERVICES, INC., a Delaware corporation("Contractor"), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit"A,"
which is attached hereto and incorporated herein by reference. As a material inducement to City
to enter into this Agreement,Contractor represents and warrants that it has thoroughly investigated
and considered the scope of services and fully understands the difficulties and restrictions in
performing the work. The services which are the subject of this Agreement are not in the usual
course of City's business and City relies on Contractor's representation that it is independently
engaged in the business of providing such services and is experienced in performing the work.
Contraetor shall perform all services in a manner reasonably satisfactory to City and in a manner
in conformance with the standards of quality normally observed by an entity providing such
services to a municipal agency. All services provided shall conform to all federal, state and local
laws, rules and regulations and to the best professional standards and practices. The terms and
conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A"
to the contrary.
Kevin Yamakawa, Associate Civil Engineer ("City's Project Manager"), shall be the
person to whom Contractor will report for the performance of services hereunder. It is understood
that Contractor's performance hereunder shall be under the supervision of City's Project Manager
or his/her designee), that Contractor shall coordinate its services hereunder with City's Project
Manager to the extent required by City's Project Manager, and that all performances required
hereunder by Contractor shall be performed to the satisfaction of City's Project Manager and the
City Manager.
2. Compensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed SIX THOUSAND SIX HUNDRED TEN DOLLARS and 00/100
6,610.00) without the prior written authorization of City.
b. The above compensation shall include all costs, including, but not limited
to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental,
subsistence and all related expenses.
3. Pavment.
a. As scheduled services are completed, Contractor shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work actually
performed or incurred.
b. All such invoices shall state the basis for the amount invoiced, including
services completed, the number of hours spent and any extra work performed.
c.City will pay Contractor the amount invoiced within thirty(30) days after
the approval of the invoice.
d. Payrnent shall constitute payrnent in full for all services, authorized costs
and authorized extra work covered by that invoice.
4. Chan e Orders. No payment for extra services caused by a change in the scope
or complexity of work, or for any other reason, shall be made unless and until such extra services
and a price therefor have been previously authorized in writing and approved by City as an
amendment to this Agreement. City's Project Manager is authorized to approve a reduction in the
services to be performed and compensation therefor. All amendments shall set forth the changes
of work, extension of time,and/or adjushnent of the compensation to be paid by City to Contractor
and shall be signed by the City's Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage,
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and its subcontractors shall maintain all
appropriate licenses, including a City of Orange business license, at its cost, during the
performance of this Agreement.
6. Indenendent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent contractor and not an employee of City. City shall have the
right to control Contractor only insofar as the result of Contractor's services rendered pursuant to
this Agreement. City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and
expense, furnish all facilities, materials and equipment which may be required for furnishing
services pursuant to this Agreement. Contractor shall be solely responsible for, and shall
indemnify, defend and save City harmless from all matters relating to the payment of its
subcontractors, agents and employees, including compliance with social security withholding and
all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.
Contractor acknowledges that it and any subcontractors, agents or employees employed by
Contractor shall not,under any circumstances,be considered-employees of City,and that they shall
not be entitled to any of the benefits or rights afforded employees of City,including,but not limited
to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or
health, life, dental, long-term disability or workers'compensation insurance benefits.
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7. Contractor Not Agent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
8. Desi nated Persons. Only those qualified persons authorized by City's Project
Manager, or as designated in Exhibit"A," shall perform work provided for under this Agreement.
It is understood by the parties that clerical and other nonprofessional work may be performed by
persons other than those designated.
9. Assi nment or Subcontractin. No assignment or subcontracting by Contractor
of any part of this Agreement or of funds to be received under this Agreement shall be of any force
or effect unless the assignment has the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
10. Time of Completion. Except as otherwise specified in Exhibit "A," Contractor
shall commence the work provided for in this Agreement within ten (10) days of the Effective
Date of this Agreement and diligently prosecute completion of the work in accordance with the
time period set forth in Exhibit "A" hereto or as otherwise agreed to by and between the
representatives of the parties.
11. Time Is of the Essence. Time is of the essence in this Agreement.' Contractor shall
do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its
control, other than those delays caused by City, shall be an extension of time. No matter what the
cause of the delay,Contractor must document any delay and request an extension of time in writing
at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the
length of the delay outside Contractor's control. If Contractor believes that delays caused by City
will cause it to incur additional costs, it must specify, in writing, why the delay has caused
additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No
additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above,
absent a written amendment to this Agreement.
14. Products of Contractor. The documents, studies, evaluations, assessments,
reports,plans, citations, materials,manuals, technical data, logs, files, designs and other products
produced or provided by Contractor for this Agreement shall become the property of City upon
receipt. Contractor shall deliver all such products to City prior to payment for same. City may
use,reuse or otherwise utilize such products without restriction.
15. Equal Emplovment Opportunitv. During the performance of this Agreement,
Contractor agrees as follows:
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a. Contractor shall not discriminate against any employee or applicant for
employment because of race, color,religion, sex,national origin,mental or physical disability, or
any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed,
and that employees are treated during employrnent, without regard to their race, color, religion,
sex, national origin,mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include,but not be limited to the following: employment,upgrading, demotion
or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms
of compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
c.Contractor shall cause the foregoing paragraphs (a) and(b)to be inserted in
all subcontracts for any work covered by this Agreement, provided that the foregoing provisions
shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a consultant to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a financial interest as defined in Section 87103 of the Government Code.
17. Indemnity.
a. To the fullest extent permitted by law, Contractor agrees to indemnify,
defend and hold City, its City Council and each member thereof, and the officers, officials, agents
and employees of City(collectively.the "Indemnitees") entirely harmless from all liability arising
out of:
1) Any and all claims under workers' compensation acts and other
employee benefit acts with respect to Contractor's employees or Contractor's subcontractor's
employees arising out of Contractor's work under this Agreement, including any and all claims
under any law pertaining to Contractor or its employees' status as an independent contractor and
any and all claims under Labor Code section 1720 related to the payrnent of prevailing wages for
public works projects; and
2) Any claim, loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission other than a professional act or omission of
Contractor, or person, firm or corporation employed by Contractor, either directly or by
independent contract, including all damages due to loss or theft sustained by any person, firm or
corporation including the Indemnitees, or any of them, arising out of, or in any way connected
with the work or services which are the subject of this Agreement, including injury or damage
either on or off City's property; but not for any loss, injury, death or damage caused by the active
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negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall
indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay
or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any
action, suit or other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, and as limited by California Civil
Code 2782.8, Contractor agrees to indemnify and hold Indemnitees harmless from all liability
arising out of any claim, loss, injury to or death of persons or damage to property to the extent
caused by its negligent professional act or omission in the performance of professional services
pursuant to this Agreement.
c.Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity which is not a signatory to this Agreement.
d. The indemnities set forth in this section shall survive any closing,
rescission, or termination of this Agreement, and shall continue to be binding and in full force and
effect in perpetuity with respect to Contractor and its successors.
18. Insurance.
a. Contractor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Contractor understands that it
is an independent contractor and not entitled to any workers' compensation benefits under any
City program.
b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover
bodily injury, death and property damage and be written on an occurrence basis.
c.Contractor shall maintain during the life of this Agreement, the following
minimum amount of automotive liability insurance: the greater of(1) a combined single limit of
One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or limits carried by or
availab e- ontractor. Said insurance shall cover bodily injury, death and property damage for
all o ed, ri-owned and hired vehicles and be written on an occurrence basis.
i d. Any insurance proceeds in excess of or broader than the minimum required
coverage andJor minimum required limits which are applicable to a given loss shall be available
to City. No representation is made that the minimum insurance requirements of this Agreement
are sufficient to cover the obligations of Contractor under this Agreement.
e.Each policy of general liability and automotive liability shall provide that
City, its officers, officials, agents, and employees are declared to be additional insureds under the
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terms of the policy, but only with respect to the work performed by Contractor .under this
Agreement. A policy endorsement to that eff.ect shall be provided to City along with the certificate
of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies)which evidences
that City is an additional insured as a contracting party. The minimum coverage required by
Subsection 18.b and c, above, shall apply to City as an additional insured.
f.Contractor shall maintain during the life of this Agreement professional
liability insurance covering errors and omissions arising out of the performance of this Agreement
with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep
such policy in force and effect for at least five (5) years from the date of completion of this
Agreement.
g. The insurance policies maintained by Cont"ractor shall be primary insurance
and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
h. Before Contractor performs any work or prepares or delivers any materials,
Contractor shall £urnish certificates of insurance and endorsements, as required by City,
evidencing the aforementioned minimum insurance coverages on forms acceptable to City,which
shall provide that the insurance in force will not be canceled or allowed to lapse without at least
ten(10) days' prior written notice to City.
i.Except for professional liability insurance coverage that may be required by
this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to
conduct the pertinent line of insurance business in California and having a rating of Grade A or
better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of
professional liability insurance coverage, such coverage shall be issued by companies either
licensed or admitted to conduct business in California so long as such insurer possesses the
aforementioned Best rating.
j Contractor shall immediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Contractor.
k. Contractor agrees that in the event of loss due to any of the perils for which
it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
Contractor hereby grants to City, on behalf of any insurer providing insurance to either Contractor
or City with respect to the services of Contractor herein,a waiver of any right to subrogation which
any such insurer may acquire against City by virtue of the payment of any loss under such
insurance.
1.Contractor shall include all subcontractors, if any, as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor to City for
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review and approval. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
19. Termination. City may for any reason terminate this Agreement by giving
Contractor not less than five (5) days' written notice of intent to terminate. Upon receipt of such
notice, Contractor shall immediately cease work, unless the notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily
provided and all allowable reimbursements incurred to the date of termination in compliance with
this Agreement, unless termination by City shall be for cause, in which event City may withhold
any disputed compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Insuection of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and
complete books, documents, papers, accounting records, and other information (collectively, the
records")pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce
any of Contractor's records regarding the services provided under this Agreement. Contractor shall
maintain all such records for a period of at least three(3) years after termination or completion of
this Agreement. Contractor agrees to make available all such records for inspection or audit at its
offices during normal business hours and upon three(3)days' notice from City, and copies thereof
shall be furnished if requested.
21. Comnliance with all Laws/Immi ration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. If the work provided for in this Agreement constitutes a"public works," as
that tertn is defined in Section 1720 of the California Labor Code,for which prevailing wages must
be paid, to the extent Contractor's employees will perform any work that falls within any of the
classifications for which the Department of Labor Relations of the State of California promulgates
prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it,
shall pay not less than the specified prevailing rates of wages to all such workers. The general
prevailing wage determinations for crafts can be located on the website of the Department of
Industrial Relations (www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract,
Contractor must meet all State registration requirements and criteria,including proj ect compliance
monitoring.
c.Contractor represents and warrants that it:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
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2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form I-9 for each of Contractor's
employees; and
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
d. Contractor shall require all subcontractors or subconsultants to make the
same representations and warranties as set forth in Subsection 21.c.
e.Contractor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the reasonable satisfaction of City,verification
that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Contractor. Once such request has been made, Contractor may not
change employees working under this Agreement without written notice to City, accompanied by
the verification required herein for such employees.
f.Contractor shall require all subcontractors or sub-consultants to make the
same verification as set forth in Subsection 21.e.
g. If Contractor or subcontractor knowingly employs an employee providing
work under this Agreement who is not authorized to work in the United States, and/or fails to
follow federal laws to determine the status of such employee,that shall constitute a material breach
of this Agreement and may be cause for immediate termination of this Agreement by City.
h. Contractor agrees to indemnify and hold City, its officers, officials, agents
and employees harmless for, of and from any loss,including but not limited to fines,penalties and
corrective measures City may sustain by reason of Contractor's failure to comply with said laws,
rules and regulations in connection with the performance of this Agreement.
22. Governin Law and Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of California and Contractor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties. Any work performed
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which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
24. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail,
postage prepaid, to each party at the address listed below. Either party may change the notice
address by notifying the other party in writing. Notices shall be deemed received upon receipt of
same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-
mail shall be deemed received on the date of the e-mail transmission.
CONTRACTOR" CITY"
Masek Consulting Services, Inc. City of Orange
23478 Sandstone Street 300 E. Chapman Avenue
Mission Viejo, CA 92692 Orange, CA 92866-1591
Attn.: F. Stephen Masek Attn.: Kevin Yamakawa
Telephone: (949) 581-8503 Telephone: (714) 744-5553
E-Mail: stephenmasek@masekconsulting.net E-Mail: kyamakawa@cityoforange.org
25. Counterparts. This Agreement may be executed in one or more counterparts,each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
Remainder of page intentionally left blank; signatures on next page]
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IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
MASEK CONSULTING SERVICES, INC., CITY OF ORANGE, a municipal corporation
a Delaware corporation
i
xBy. , By.
Printe Name: .- s ck Otto, City Manager
Title: ./Q(
By: APPROVED AS TO FORM:
Printed ame: z ?'
Title:
Mary E. B' 'ng
Senior Assistant City Atto ey
NOTE:City requires the following signature(s) on behalf of the Contractor:
1)the Chairman of the Board,the President or a Vice-President,AND (2)the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary
or an Assistant Treasurer. If only one corporate officer exists or one corporate
officer holds more than one corporate office,please so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter
into this Agreement. A copy of the corporate resolution, certified by the
Secretary close in time to the execution of the Agreement,must be provided to
City.
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EXHIBIT "A"
SCOPE OF SERVICES
Beneath this sheet.]
MASEK CONSULTING SERVICES, INC.
23478 Sandstone St. • Mission Viejo, CA 92692
Phone (949) 581-8503 • http://www.masekconsulting.net
c o oa ff 'r a Oc 0 cr a E O 7°
Asbesfos a Lead o Moid PCBs Indoor Air Quality oLEED' o Phase 1 Environmental Site Assessments
Property Condition Assessments o Universal Wastes o Toxic and Ha ardous Maferials oAbatement Project
Management o Specialists In Saving Money, Keeping Projects On Schedule, and Reducing Liability m
Experience With Thousands of Buildin,qs and Properfies Of All Types
Consulting Services Contract
The Client is The City of Orange, California. The subject properties are 121 and 176 S. Grand
Street in Orange, CA . Client and Masek Consulting Services, Inc. (MCSI) acknowledge and
agree that this contract, while based on MCSI "boilerplate," is the product of negotiation and
preparation by both, and that Client has presented and negotiated any modifications they desire
and had the opportunity to obtain the advice of a properly qualified attorney. This represents
the entire agreement between MCSI and Client. The following are included:
Asbestos, Lead, and Miscellaneous Toxic Materials Surveys
The following services are included:
Inspection of the fire house first, then the apartment building later;
The services of a team of two consisting of a senior experienced California
Certified Asbestos Consultant and California Lead Inspector/Risk Assessor and
a senior experienced consultant to perform the surveys with superior efficiency,
quality, and safety;
A physical walkthrough of the building(s) to evaluate the potential presence of
Asbestos Containing Materials (ACMs) and lead (paint and ceramic tile);
Collection of bulk asbestos survey samples and submission of those samples for
analysis by the Polarized Light Microscopy (PLM) method (We will attempt to
avoid visible or objectionable damage, but some localized damage spots may
result from the sampling work. Location and sampling of underground items,
concrete, and asphalt paving systems shall be outside of the scope);
Testing of paint and ceramic tile using a portable XRF (X-Ray Fluorescence)
instrument (if similar building component types with identical substrates (such as
windows) are all found to contain lead paint in the first five interior room
equivalents. testing of that component type in the remaining room equivalents will
be discontinued);
Photographs of the subject property and of particular materials sampled or of
note;
Inspection of a representative sample of fluorescent light fixtures for the presence
of PCB-containing ballasts (that not labeled as not containing PCBs and/or date
coded before 1979) and fluorescent tubes containing mercury which need to be
recycled;
Pre-Demolition Asbesfos, Lead, and Miscellaneous Toxic Materials Surveys at 121 and 176 S. Grand Street in
Orange, CA Consulting Services Contract With The City of Orange December 22, 2020 Page 1 of 5
Identification of high intensity discharge lighting which may/does contain PCB-
containing ballasts;
Identification of inercury switches, as in thermostats, pressure/level controls,
silent" switches, and such;
Identification of oil-cooled electrical transformers,containers of transformeroil,oil-
filled capacitors, and oil filled high voltage switches not labeled as containing less
than 5ppm PCBs;
Identification of refrigeration / HVAC equipment containing refrigerants;
Identification of radioactive (self-illuminating) exit signs;
Preparation of abatement specifications; and,
Preparation of a formal report containing photographs, conclusions,
recommendations, and laboratory report(s).
Scheduling of the work shall be negotiated by MCSI and Client, and is subject to prior
commitments of MCSI and to COVID-19 regulations, restrictions, and delays.
The invoice(s) shall be sent with the report(s) and are due when received. Any payment
received more than 30 days after the invoice date shall incur interest at 1.5% per month,
compounded, plus fees of$150 per hour to pay for MCSI's time and effort to collect the payment
not interest).
If requested, MCSI shall cause Client to receive a standard"additional insured"form with current
coverage. Requests for coverage(s) beyond those provided by the policies or non-standard
coverage forms or wording may require additional payments from Client.
Client shall not require any other items not included in this contract prior to payment.
Should arbitration, litigation, dealings with government agencies, contractors, or tenants,
meetings, and/or other such additional work arise during or following the work outlined above,
Client shall pay additional charges as invoiced by MCSI, at $150 per hour plus expenses and
overhead, and shall pay $400 per hour plus expenses for expert witness work (preparation,
research, depositions, travel, trial, etc.).
Client shall have no right to demand changes or deletions to MCSI's report(s), except for
correction of typographical errors. MCSI shall have no obligation to find or report potential or
actual problems or defects with the subject property beyond the scope of services in this
contract, but Client agrees that MCSI may report or mention such items in any of its reports or
communications with Client.
Should client claim any deficiencies of any sort with MCSI's services, the claim must be made
verbally and in writing to MCSI, with written verification received from MCSI that MCSI has
Pre-Demolition Asbestos, Lead, and Miscellaneous Toxic Materials Surveys at 121 and 176 S. Grand Street in
Orange, CA Consulting Services Contract With The City of Orange December 22, 2020 Page 2 of 5
received the claim, and MCSI shall be allowed adequate opportunity, given normal scheduling
and other such considerations, to correct it/them before client takes any other action against
MCSI. MCSI shall have the right to initiate legal proceedings to collect late payments, or
payments where client attempts to demand items not specifically included in the scope,
additional paperwork, and/or terms herein after this contract is signed by them, and Client shall
be solely responsible for the costs of any such legal action. All other disputes between MCSI
and Client arising out of or related to this contract shall be decided by arbitration in accordance
primarily with the provisions of this contract and secondarily under the rules of a national
arbitration association or organization mutually selected (except any rules which conflictwith this
contract). The arbitrator(s) must also be mutually selected and agreed and must be well
experienced in the issue(s) under arbitration. Written notice of demand for arbitration must be
given to the other party and to the arbitration association or organization within a reasonable
time after the dispute has arisen, in no event after the date when the institution of court
proceedings based on such dispute would be barred by the applicable statute of limitations.
Unless agreed by the parties,the arbitration hearings shall be held at Orange County, California.
Cost of arbitration shall be apportioned between the parties as the arbitrator(s) may decide,
consistent with the parties' intent that the nonprevailing party should bear said costs. The
arbitrator's(s') award shall be final. The award and this agreement to arbitrate may be
specifically enforced by any court having jurisdiction thereof. The invoice(s) shall be sent with
the report(s)and are due when received and late after 30 days, unless stated otherwise on the
invoice. The provisions of this agreement shall override the provisions of any other document
to which it is attached, no matter the wording in any such other document.
Client agrees that MCSI's compensation hereunder is in no way commensurate with the
potential risk of injury or loss associated with ownership, development, construction, purchase,
sale, and any other activity involving real estate and buildings and that MCSI's liability for injury
or loss of any type for any reason shall not exceed the fees paid under this contract.
Client agrees to protect MCSI from any claim(s) arising due to defects or problems with the
subject property which are not discovered and reported due to any limitations in the above
scope of work.
Client agrees that MCSI shall have no liability for anything other than injury or loss caused by
MCSI's negligence in the performance of the services specified in this contract.
Client agrees that since MCSI has no control whatsoever over the quality or completeness of
work performed by others, including Client personnel, other consultants hired by the Client,
contractors hired by Client, persons and/or companies who purchase and/or lease property from
Client, or any third party, MCSI shall not be held liable for any actions by those parties, and the
Client agrees specifically to accept all responsibility for all actions by those parties. This
responsibility shall include, but not be limited to all legal fees and all claims awarded in any
arbitration, settlement negotiation or claim awarded by a court of law.
Lack of access to locked areas or areas which can not be safely accessed within the project
time frame and budget is not the responsibility of MCSI.
Client agrees that routine sampling /testing /analysis, even when done well, may on occasion
fail to detect the presence of a hazardous material or detrimental condition.
Pre-Demolifion Asbesfos, Lead, and Miscellaneous Toxic Materials Surveys at 121 and 176 S. Grand Street in
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It is possible that unforeseen conditions or occurrences may be encountered which could
substantially alter the necessary services or risks involved in completing the above scope of
services. If this occurs, MCSI will attempt (given the circumstances) to promptly notify and
consult with Client, but will act based on its sole judgement where risk to itself or to its personnel
is involved. Possible actions could include: Complete the original scope of services, if
practicable in MCSI's sole judgement; or Agree with Client to modify the scope of services and
the charges, with a written revision to this contract; or Terminate the services effective on the
date specified by MCSI in writing.
Client shall not require any business license, or shall pay the cost of it if they do want it.
The conclusions presented in MCSI's report(s) are intended only for the purpose, the location,
and project indicated, and only apply to site conditions existing at the time of the survey and/or
report.
Test samples will be disposed of by the laboratory(ies).
MCSI shall not be responsible for any clean-up, repairs, board-up, or re-board-up.
MCSI does not warrant that any information supplied to them by others is accurate and/or
complete.
MCSI shall retain ownership of all reports and documents produced and obtained to perform the
services specified in this contract.
Changes in the conditions of the property may occur with time due to natural processes or
various activities on the subject property. Changes in applicable codes and standards may also
occur as a result of legislation or the broadening of knowledge. Accordingly, the report(s)
produced by MCSI under this contract may become invalid.
By entering into this agreement, MCSI does not assume control of or responsibility for the
subject property, or undertake responsibility for reporting anything to any government agencies.
All obligations arising prior to the termination of this agreement and all provisions of this
agreement allocating responsibility or liability between Client and MCSI shall survive the
completion of the services and the termination of this agreement.
Client agrees to inform any third parties they provide with MCSI's work product(s) or report(s)
that they must either also have a contract in place with MCSI, or may not rely on MCSI's work
product(s) or report(s).
If Client adds a request for abatement oversight, monitoring, and documentation, Client agrees
to pay $850 per shift plus laboratory expenses at cost plus 3% for those services, and provide
MCSI at least three working days advance notice of all abatement delays or cancellations, and
agrees to pay MCSI the full daily rate if less notice is provided.
In the event that any provision of this agreement is found to be unenforceable, the other
provisions shall remain in full force and effect.
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Client agrees to advise MCSI of any hazardous condition (including possible or actual criminal
activity), known or that should be known by Client, existing in, on, or near the subject property
that present a potential danger during the performance of the services under this contract.
If Client is another consulting firm and MCSI supplies an electronic file of the report text, Client
agrees to hold harmless and defend MCSI against any negligent modifications to the text.
Client shall provide/arrange site access and agrees that MCSI has the right to enter the subject
property as needed to perform the services specified in this contract, including related and
incidental tasks.
Any form of acknowledgment which requests MCSI to perform the above scope of services(e.g.
purchase order, work order, allowing access to begin the work, paying for the work) shall
constitute acceptance of this agreement by Client.
Client agrees to provide parking for one MCSI vehicle on the subject property.
Client agrees the business license fee for this project shall not exceed $110.
The charge for the above services shall be: $6,110 (no longer valid and withdrawn if not
accepted by Client within 120 days).
Masek onsulting Services, Inc.
F. Stephen Masek, President
ClientSignature:
person who warrants that they are authorized to financially commit client and allow access
Client printed name and title
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