01-19-2021 - AGENDA ITEM 19 CONSIDERATION OF PROFESSIONAL SERVICES AGREEMENT BETWEEN FIRE RECOVERY USA, LLC AND THE CITY OF WEST COVINA FOR FIRE INSPECTION BILLING SERVICESAGENDA ITEM NO. 19
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
DATE: January 19, 2021
TO: Mayor and City Council
FROM: David Carmany
City Manager
SUBJECT: CONSIDERATION OF PROFESSIONAL SERVICES AGREEMENT BETWEEN FIRE
RECOVERY USA, LLC AND THE CITY OF WEST COVINA FOR FIRE INSPECTION
BILLING SERVICES
RECOMMENDATION:
It is recommended that the City Council take the following actions:
Approve dispensing with bidding requirements for fire inspection billing services in accordance with
Section 2-330(b) of Division 2 of Article VII of Chapter 2 of the West Covina Municipal Code, which
states that bidding may be dispensed with when the commodity can be obtained from only one vendor;
and
2. Authorize the City Manager to negotiate and execute a Professional Services Agreement with Fire
Recovery USA, LLC ("Fire Recovery") for a term of three (3) years, effective retroactive to July 1, 2020
and ending June 30, 2023.
BACKGROUND:
Pursuant to California Health & Safety Code section 13145 and 13146, the Fire Department conducts annual
State -mandated inspections of state -regulated buildings and structures, such as daycare facilities, schools,
institutional facilities, multi -family residential dwellings, and high-rise buildings.
Also, in accordance with the California Fire Code sections 105.1.1 through 105.7.18, the Fire Department
conducts annual operational inspections that allow the applicant to conduct an operation or a business for
which the permit is required.
The fees for these inspections are set forth in the City's Adopted Fee and Fine Schedule.
In 2018, the prior City Manager approved an agreement with Fire Recovery for fire inspection billing services
for the above inspections, with extensions, through November 2023; however, the 2019 extension was
inadvertently not exercised. As such, a new agreement was prepared, to cover a similar period, but expiring in
June 2023 rather than November 2023.
DISCUSSION:
(c) Primary Coverage: The Contractor's insurance coverage shall be primary
insurance as respects the City of West Covina, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
West Covina shall be excess and not contributing with the insurance
provided by this policy.
(d) Waiver of Subrogation: Contractor hereby grants to City a waiver of any
right to subrogation which any insurer of said Contractor may acquire
against the City by virtue of the payment of any loss under such insurance.
Contractor agrees to obtain any endorsement that may be necessary to
affect this waiver of subrogation, but this provision applies regardless of
whether or not the City has received a waiver of subrogation endorsement
from the insurer.
(e) Coverage Not Affected: Any failure to comply with the reporting provisions
of the policies shall not affect coverage provided to the City of West Covina,
its officers, officials, agents, employees, and volunteers.
(f) Coverage Applies Separately: The Contractor's insurance shall apply
separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a
deductible or self -insured retention to provide such coverage, the amount of such deductible or
self -insured retention shall be approved in advance by City. The City may require the Contractor
to purchase coverage with a lower retention or provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention. The policy
language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied
by either the named insured or City.
5.4. 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. The City
reserves the right to require complete, certified copies of all required insurance policies, including
endorsements required by these specifications, at any time.
5.5. Non -limiting. Nothing in this Section shall be construed as limiting in any way the
indemnification provision contained in this Agreement.
6.0. GENERAL PROVISIONS
6.1. 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.
6.2. Representatives. The City Manager or his or her designee shall be the
representative of City for purposes of this Agreement and may issue all consents, approvals,
directives and agreements on behalf of the City, called for by this Agreement, except as otherwise
expressly provided in this Agreement.
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Contractor shall designate a representative for purposes of this Agreement who
shall be authorized to issue all consents, approvals, directives and agreements on behalf of
Contractor called for by this Agreement, except as otherwise expressly provided in this
Agreement.
6.3. Key Personnel. It is the intent of both parties to this Agreement that Contractor
shall make available the professional services of Justin Powell, Vice President, and Mike Rivera,
Chief Business Development Officer, who shall coordinate directly with City. Any substitution of
key personnel must be approved in advance in writing by City's Representative.
6.4. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery,
facsimile, Email or by U.S, mail. If by U.S. mail, it shall be addressed as set forth below and placed
in a sealed envelope, postage prepaid, and deposited in the United States Postal Service. 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 or by Email; and c) 72 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:
Fire Recovery USA, LLC
City of West Covina
2271 Lava Ridge Court, Suite 120
1444 West Garvey Ave. South
Roseville, CA 95661
West Covina, CA 91790
Tel: (888) 640-7222
Tel: (626) 939-8830
Fax: (916) 943-1661
Fax: (626) 939-8650
Email: cnagler@firerecoveryusa.com
Email: vcapelle@westcovina.org
Attn: Craig Nagler
Attn: Vincent Capelle, Fire Chief
6.5. Attorneys' Fees. If litigation is brought by any party in connection with this
Agreement against another party, 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.
6.6. 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 Los
Angeles County, California.
6.7. 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.
Fire Recovery USA, LLC
Form Revised April 2020
6.8. Indemnification and Hold Harmless. Contractor agrees to defend, indemnify,
hold free and harmless the City, its elected and appointed officials, officers, agents and
employees, at Contractor's sole expense, from and against any and all claims, demands, actions,
suits or other legal proceedings brought against the City, its elected and appointed officials,
officers, agents and employees arising out of the performance of the Contractor, its employees,
and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The
defense obligation provided for hereunder shall apply without any advance showing of negligence
or wrongdoing by the Contractor, its employees, and/or authorized subcontractors, but shall be
required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors,
omissions or misconduct of the Contractor, its employees, and/or authorized subcontractors,
and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected
and appointed officials, officers, agents and employees based upon the work performed by the
Contractor, its employees, and/or authorized subcontractors under this Agreement, whether or
not the Contractor, its employees, and/or authorized subcontractors are specifically named or
otherwise asserted to be liable. Notwithstanding the foregoing, the Contractor shall not be liable
for the defense or indemnification of the City for claims, actions, complaints or suits arising out of
the sole active negligence or willful misconduct of the City. This provision shall supersede and
replace all other indemnity provisions contained either in the City's specifications or Contractor's
Proposal, which shall be of no force and effect.
6.9. Independent Contractor. Contractor is and shall be acting at all times as an
independent contractor and not as an employee of City. Contractor shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Contractor or any of
Contractor's employees, except as set forth in this Agreement. Contractor shall not, at any time,
or in any manner, represent that it or any of its or employees are in any manner agents or
employees of City. Contractor shall secure, at its sole expense, and be responsible for any and
all payment of 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. Contractor shall indemnify and hold City harmless from any
and all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. Contractor further agrees to
indemnify and hold City harmless from any failure of Contractor to comply with the applicable
worker's compensation laws. City shall have the right to offset against the amount of any fees due
to Contractor under this Agreement any amount due to City from Contractor as a result of
Contractor's failure to promptly pay to City any reimbursement or indemnification arising under
this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Contractor or any employee,
agent, or subcontractor of Contractor providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Contractor shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Contractor or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or
ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
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agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to
any contribution to be paid by City for employer contribution and/or employee contributions for
PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to
Contractor's performance or services rendered under this Agreement, Contractor shall render any
reasonable assistance and cooperation which City might require.
6.12. Ownership of Documents. All findings, reports, documents, information and data
including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by
Contractor or any of its subcontractors in the course of performance of this Agreement, shall be
and remain the sole property of City. Contractor agrees that any such documents or information
shall not be made available to any individual or organization without the prior consent of City. Any
use of such documents for other projects not contemplated by this Agreement, and any use of
incomplete documents, shall be at the sole risk of City and without liability or legal exposure to
Contractor. City shall indemnify and hold harmless Contractor from all claims, damages, losses,
and expenses, including attorneys' fees, arising out of or resulting from City's use of such
documents for other projects not contemplated by this Agreement or use of incomplete documents
furnished by Contractor. Contractor shall deliver to City any findings, reports, documents,
information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes
or any other related items as requested by City or its authorized representative, at no additional
cost to the City. Contractor or Contractor's agents shall execute such documents as may be
necessary from time to time to confirm City's ownership of the copyright in such documents.
6.13. Electronic Safeguards. Contractor shall identify reasonably foreseeable internal
and external risks to the privacy and security of personal information that could result in the
unauthorized disclosure, misuse, alteration, destruction or other compromise of the information.
Contractor shall regularly assess the sufficiency of any safeguards and information security
awareness training in place to control reasonably foreseeable internal and external risks, and
evaluate and adjust those safeguards in light of the assessment.
6.14. Economic Interest Statement. Contractor hereby acknowledges that pursuant to
Government Code Section 87300 and the Conflict of Interest Code adopted by City, Contractor
is designated in said Conflict of Interest Code and is therefore required to file an Economic Interest
Statement (Form 700) with the City Clerk, for each employee providing advice under this
Agreement, prior to the commencement of work, unless waived by the City Manager.
6.15. Conflict of Interest. Contractor and its officers, employees, associates and
subcontractors, if any, will comply with all conflict of interest statutes of the State of California
applicable to Contractor's services under this agreement, including, but not limited to, the Political
Reform Act of 1974 (Government Code Section 81000, et seq.) and Government Code Sections
1090-1092. Contractor covenants that none of Contractor's officers or principals have any interest
in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree
with the performance of the services hereunder, including in any manner in violation of the Political
Reform Act. Contractor further covenants that in the performance of this Agreement, no person
having such interest shall be used by Contractor as an officer, employee, agent, or subcontractor.
Contractor further covenants that Contractor has not contracted with nor is performing any
services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s)
and/or partnership(s) owning property in the City and further covenants and agrees that
Contractor and/or its subcontractors shall provide no service or enter into any agreement or
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agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s)
owning property in the City prior to the completion of the work under this Agreement.
6.16. Prohibited Employment. Contractor will not employ any regular employee of City
while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any
of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent
this Agreement incorporates by reference any provision of any document, such provision shall be
deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and
conditions of this Agreement and those of any such provision or provisions so incorporated by
reference, this Agreement shall govern over the document referenced.
6.18. 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.
6.19. 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.
6.20. 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
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
6.21. Amendments. Only a writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
6.22. 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
in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.23. Severabilitv. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, 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. Notwithstanding the foregoing, if the value of this Agreement,
based upon the substantial benefit of the bargain for any party, is materially impaired, which
determination made by the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith negotiations.
6.24. Counterparts and Electronic Signatures. 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. Counterpart written signatures may be
transmitted by facsimile, email or other electronic means and have the same legal effect as if they
were original signatures.
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6.25. 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.
6.26. Taxpayer Identification Number. Contractor shall provide City with a complete
Request for Taxpayer Identification Number and Certification, Form W9, as issued by the Internal
Revenue Service.
[SIGNATURE PAGE FOLLOWS.]
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Form Revised April 2020
Fire Recovery USA, LLC
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 WEST COVINA,
A municipal corporation
David Carmany
City Manager
CONTRACTOR
Rick Benner
CFO, Manager
ATTEST:
Lisa Sherrick
Assistant City Clerk
APPROVED AS TO FORM:
Thomas P. Duarte
City Attorney
APPROVED AS TO INSURANCE:
Helen Tran
Human Resources and Risk Management
Director
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Date:
Date:
Date:
Date:
Form Revised April 2020
Fire Recovery USA, LLC
EXHIBIT A
SCOPE OF SERVICES
INSPECTION AND PERMIT BILLING
1. Contractor agrees to bill the responsible parry on the City's behalf for fire inspection and/or
permit services rendered by the City and recorded and processed by Contractor. The
inspection and/or permit fees may change over time due to update of City's fee schedule. City
will provide notice to Contractor of changes to its fee schedule.
2. Contractor will provide, as a normal matter of business; processing and invoicing of
inspections and/or permits and submission to the responsible party for payment, receipt of
monies deemed due to the City, payments of the agreed upon amounts of said monies to City,
and reporting of progress via Inspection Hub.
3. Contractor will assure the equipment used by the City to perform inspections and/or permits
are properly loaded with the appropriate software and will provide on -going training and
support to the City in the use of the equipment and software.
4. Contractor agrees to bill to the best of its ability all inspections and/or permits provided to
Contractor by the City.
5. Contractor will not begin litigation against a person or entity without prior written approval by
the City.
6. Contractor agrees to remit to City the full amount collected for each inspection less a
processing fee of Seventeen Dollars ($17.00) for each paid inspection. Contractor will also
collect Fifty Percent (50%) of any late fee assessed by the City and collected by Contractor
on City's behalf as compensation for Contractors billing efforts.
7. Contractor will pass any electronic payment processing for payments made by E-check or
credit card to the consumer paying each invoice.
8. Contractor agrees to pay the funds due to the City for its inspections and/or permits on a
monthly basis, within seven (7) working days after the close and accounting of the monthly
billing cycle.
9. Contractor agrees to make reports available via InspectionHub, a password protected
website, for the City which will set forth the status of all inspections and/or permits and provide
an accounting of all payments and amounts due the City under the terms of this Agreement.
10. Contractor will not be responsible for, nor accept any liability for, any erroneous, invalid, or
illegal inspections or permits performed by City.
11. Parties acknowledge a critical component to the success of the billing effort is the acquisition
by the City of the necessary contact information for the responsible party at each inspection
and/or permit location to whom the invoice will be sent. The City agrees to obtain, for each
business location, the e-mail address and telephone number for the responsible parry for
payment. If the City does not maintain an 80% success rate for obtaining accurate contact
information, the Contractor reserves the right to charge a Fifteen Dollar ($15.00) processing
charge for attempting to identify the responsible party, whether that effort is successful or not.
If this fee is charged by the Contractor, the total fee for each month will be documented and
subtracted from the monthly payment set forth in paragraph 7, above.
12. City will, to the extent it deems appropriate and necessary, expend the resources and take
the required actions to obtain payment for all invoices that remain unpaid after 60 days of the
invoice date and arrange for those payments to be forwarded to the Contractor for processing
under the terms of this Agreement.
Fire Recovery provides third party billing services for Fire Department inspections and other Fire Department
services. The Fire Department spends a significant amount of time billing for and receiving money for State -
mandated fire inspections and annual operational inspections. It is more efficient and cost effective to have a
third party bill for these fire inspections. By using a third -party billing service for these administrative
responsibilities, fire inspectors can focus their efforts on conducting inspections to ensure compliance with the
Fire Code.
Fire Recovery USA is the nation's largest cost recovery company created to serve fire departments across the
U.S. Since 2006, they have provided cost recovery services to departments in 33 states and are the leading
provider in incident cost recovery in the nation.
Their proprietary system and software allows Fire Recovery USA to efficiently and effortlessly bill for fire
inspections in accordance with the City's Adopted Fee and Fine Schedule. Because of efficiencies delivered by
their software and support services, Fire Recovery USA offers cost recovery that is extremely efficient and cost
effective.
In an effort to improve customer service, staff transitioned all components of the fire and life safety inspection
program to one cloud platform, managed by Streamline Automation Systems and Fire Recovery USA; sister
companies that are the only vendors that offer fire inspection software integrated with inspection billing
services.
The Fire Department also contracts with Fire Recovery USA for emergency incident billing and wishes to
continue services for fire inspection billing services. The Fire Department is very satisfied with their customer
service in providing billing services per the City's Adopted Fee Schedule.
Since the Fire Department already utilizes the Streamline Automation Systems software and because the Fire
Department is not aware of any other software vendor that provides fire inspection software integrated with a
full service billing provider, staff recommends contracting with Fire Recovery USA to provide inspection
billing services under a sole source designation in accordance with Section 2-330(b) of Division 2 of Article
VII of Chapter 2 of the West Covina Municipal Code, which states that bidding may be dispensed with when
the commodity can be obtained from only one vendor. Fire Recovery USA will process, invoice, and collect the
inspection billing revenue on behalf of the City. Fire Recovery USA charges the City $17.00 per paid
collection, and 50% of any late fee collected. It collects its fees from the amounts collected on behalf of the
City prior to issuing such amounts to the City.
Because Fire Recovery USA is conducting cost recovery services for the City and deducting its fees directly
from the amounts collected on behalf of the City, there is no maximum compensation amount specified in the
agreement. However, staff estimates that Fire Recovery USA's compensation will not exceed $30,000
annually.
LEGAL REVIEW:
The City Attorney's Office has reviewed the agreement and approved it as to form.
OPTIONS:
The City Council has the following options:
1. Approve staff's recommendation; or
2. Provide alternative direction.
Fiscal Impact
FISCAL IMPACT:
For each inspection conducted for State -mandated properties (for ex., daycare facility commercial/residential,
convalescent hospital, hospital, medical facility, high rise building, hotels/motels/apartments, schools
public/private) and operational annual inspections (for ex., aerosol products, battery system, combustible fiber
storage handling, combustible material storage, etc.), Fire Recovery will charge a $17 fee per each paid
inspection. Each time Fire Recovery generates an invoice, the $17 fee is applied. If Fire Recovery is unable to
collect on an invoice, the $17 fee does not apply, and the City will not need to reimburse Fire Recovery.
Listed below is a summary of the actual inspections conducted in FY 2019-2020.
Inspection Type
FY 2019-2020
State Mandated Inspections
175
Operational Annual Inspections
(Fire Code Permits)
181
Revenue generated from these inspections was approximately $51,293.25, resulting in a net revenue of
$46,353.75. Fire Recovery revenue was $4,939.50. Fire inspectors work hard to obtain accurate responsible
party information when the inspection is conducted so that the billing process will be simplified for Fire
Recovery. When Fire Recovery has an outstanding non -paid bill in excess of 90 days, they will ask the City to
recover the inspection fee using the City's collection agency. If successful, the City would pay Fire Recovery
the $17 fee.
Attachments
Attachment No. 1 - Professional Services Agreement with Fire Recovery USA Inc.
CITY COUNCIL GOALS & OBJECTIVES: Enhance City Facilities and Infrastructure
Enhance the City Image and Effectiveness
Protect Public Safety
ATTACHMENT NO. 1
CITY OF WEST COVINA
PROFESSIONAL SERVICES AGREEMENT
WITH
FIRE RECOVERY USA, LLC
FOR
INSPECTION AND PERMIT BILLING SERVICES
THIS AGREEMENT is made and entered into as of the 1st day of July, 2020 ("Effective
Date"), by and between the CITY OF WEST COVINA, a municipal corporation ("City"), and FIRE
RECOVERY USA, LLC, a California limited liability company ("Contractor').
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Contractor as an independent
contractor to City to provide inspection and permit billing services, as more fully described herein;
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, except that if Contractor is
required to but does not yet hold a City business license, it will promptly obtain a business license
and will not provide services to the City until it has done so; and
C. WHEREAS, City and Contractor desire to contract for the specific services
described in Exhibit "A" and desire to set forth their rights, duties and liabilities in connection with
the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the
provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this
Agreement.; and
E. WHEREAS, Contractor has provided the services contemplated herein pursuant
to that certain Professional Services Agreement dated November 9, 2018; and
F. WHEREAS, the parties intend and desire that this Agreement be effective
retroactive to the Effective Date.
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. Contractor shall provide the professional services described
in the Scope of Services attached hereto as Exhibit "A," incorporated herein by this reference.
(a) Billing and Collections. Contractor will bill and collect all revenue earned and due
to City ("Collections"), in connection with City's provision of inspection and permit
services provided/rendered as set forth in Exhibit "A," and receive all Collections
on City's behalf and may sue for and give satisfaction for monies due on account
and withdraw any claims, suits, or proceedings pertaining to or arising out of City's
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or Contractor's right to collect to such amounts; provided, however, that Contractor
may not take legal action to collect fees without the prior written permission of City;
and
(b) Endorsement. Contractor may take possession of and endorse in City's name any
notes, money orders, and any other instruments received as Collections.
(c) Payment. On or before the 7th day of each month, Contractor will issue a check
to the City for all payments received prior to the previous month's cut-off date
(typically the 24th of the month), minus the Contractor's collection fee as set forth
herein. Contractor will provide with the monthly payment an itemized statement
detailing the inspections and/or permits the check is paid against.
1.2. Professional Practices. All professional services to be provided by Contractor
pursuant to this Agreement shall be provided by personnel experienced in their respective fields
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 shall keep itself informed of State and
Federal laws and regulations which in any manner affect those employed by it or in any way affect
the performance of its service pursuant to this Agreement. The Contractor shall at all times
observe and comply with all such laws and regulations. City officers and employees shall not be
liable at law or in equity for any claims or damages occurring as a result of failure of the Contractor
to comply with this section.
1.3. Performance to Satisfaction of Citv. Contractor agrees to perform all the work to
the reasonable satisfaction of the City. Evaluations of the work will be conducted by the City
Manager or his or her designee. If the quality of work is not satisfactory, City in its discretion has
the right to:
(a) Meet with Contractor to review the quality of the work and resolve the
matters of concern;
(b) Require Contractor to repeat the work at no additional fee until it is
satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. 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; and all other Federal,
State and local laws and ordinances applicable to the services required under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Contractor shall not engage in,
nor permit its agents to engage in, discrimination in employment of persons because of their race,
religion, color, national origin, ancestry, age, physical or mental disability, medical condition,
genetic information, pregnancy, marital status, sex, gender, gender identity, gender expression,
sexual orientation, or military or veteran status, except as permitted pursuant to Section 12940 of
the Government Code.
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1.6. 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.
1.7. Confidentiality. Employees of Contractor in the course of their duties may have
access to financial, accounting, statistical, and personnel data of private individuals and
employees of City. Contractor covenants that all data, documents, discussion, or other information
developed or received by Contractor or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Contractor without written authorization by City. City
shall grant such authorization if disclosure is required by law. All City data shall be returned to
City upon the termination of this Agreement. Contractor's covenant under this Section shall
survive the termination of this Agreement.
1.8. Public Records Act Disclosure. Contractor has been advised and is aware that
this Agreement and all reports, documents, information and data, including, but not limited to,
computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors,
pursuant to this Agreement and provided to City may be subject to public disclosure as required
by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade
secrets, as that term is defined in California Government Code Section 6254.7, and of which
Contractor informs City of such trade secret. The City will endeavor to maintain as confidential all
information obtained by it that is designated as a trade secret. The City shall not, in any way, be
liable or responsible for the disclosure of any trade secret including, without limitation, those
records so marked if disclosure is deemed to be required by law or by order of the court.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Contractor will be compensated according to the following fee
schedule:
Description
Amount
Processinq Fee
$17.00 per paid inspection
Late Fee Billing
50% of any late fee collected
Contractor will deduct its fees from the amount issued to the City each month pursuant to Section
1.1(c) of this Agreement.
2.2. Additional Services. Contractor shall not receive compensation for any services
provided outside the scope of services specified in the Contractor's Proposal 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. Should the City request in writing
additional services that increase the Scope of Services, an additional fee based upon the
Contractor's standard hourly rates shall be paid to the Contractor for such additional services.
Such increase in additional fees shall be limited to 25% of the total contract sum or to the
maximum total contract amount of $25,000, whichever is greater. The Department Head or City
Manager is authorized to approve a Change Order for such additional services.
2.3. Records and Audits. Records of Contractor's services relating to this Agreement
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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 from the Effective
Date until three (3) years after the termination or expiration of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. Unless otherwise agreed to by the
parties, the professional services to be performed pursuant to this Agreement shall commence
within five (5) days from the Effective Date of this Agreement. Failure to commence work in a
timely manner and/or diligently pursue work to completion may be grounds for termination of this
Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party or parties. Such acts
shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with
laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a
party. If a delay beyond the control of the Contractor is encountered, a time extension may be
mutually agreed upon in writing by the City and the Contractor. The Contractor shall present
documentation satisfactory to the City to substantiate any request for a time extension.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall be effective retroactive to the Effective Date and
continue for three (3) years, through June 30, 2023, unless previously terminated as provided
herein or as otherwise agreed to in writing by the parties.
4.2. Notice of Termination. The City reserves and has the right and privilege of
canceling, suspending or abandoning the execution of all or any part of the work contemplated
by this Agreement, with or without cause, at any time, by providing at least fifteen (15) days prior
written notice to Contractor. In the event of such termination, Contractor shall immediately stop
rendering services under this Agreement unless directed otherwise by the City. If the City
suspends, terminates or abandons a portion of this Agreement such suspension, termination or
abandonment shall not make void or invalidate the remainder of this Agreement.
If the Contractor defaults in the performance of any of the terms or conditions of this
Agreement, it shall have ten (10) days after service upon it of written notice of such default in
which to cure the default by rendering a satisfactory performance. In the event that the Contractor
fails to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement, to terminate this Agreement without further notice and
without prejudice to any other remedy to which it may be entitled to at law, in equity, or under this
Agreement.
The City also shall have the right, notwithstanding any other provisions of this Agreement,
to terminate this Agreement, at its option and without prejudice to any other remedy to which it
may be entitled to at law, in equity, or under this Agreement, immediately upon service of written
notice of termination on the Contractor, if the latter should:
a. Be adjudged a bankrupt;
b. Become insolvent or have a receiver of its assets or property appointed
because of insolvency;
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C. Make a general assignment for the benefit of creditors;
d. Default in the performance of any obligation or payment of any
indebtedness under this Agreement;
e. Suffer any judgment against it to remain unsatisfied or unbonded of record
for thirty (30) days or longer; or
f. Institute or suffer to be instituted any procedures for reorganization or
rearrangement of its affairs.
4.3. Compensation. In the event of termination, City shall pay Contractor for
reasonable costs incurred and professional services satisfactorily performed up to and including
the effective date of the City's written notice of termination, within forty-five (45) days after the
effective date of the notice of termination or the final invoice of the Contractor, whichever occurs
last. Compensation for work in progress shall be prorated based on the percentage of work
completed as of the effective date of termination in accordance with the fees set forth herein.
4.4. Documents. In the event of termination of this Agreement, all documents prepared
by Contractor in its performance of this Agreement including, but not limited to, finished or
unfinished design, development and construction documents, data studies, drawings, maps and
reports, shall be delivered to the City within ten (10) days of the effective date of the notice of
termination, at no cost to City.
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5.1. Minimum Scope and Limits of Insurance. Contractor shall obtain, maintain, and
keep in full force and effect during the life of this Agreement all of the following minimum scope
of insurance coverages with an insurance company authorized to do business in California, with
a current A.M. Best's rating of no less than A:VII, and approved by City:
(a) Broad -form commercial general liability, including premises -operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily injury
with a policy limit of not less than Two Million Dollars ($2,000,000.00),
combined single limits, per occurrence. If such insurance contains a
general aggregate limit, it shall apply separately to this Agreement or shall
be twice the required occurrence limit.
(b) Business 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 accident for bodily injury and
property damage.
(c) Workers' compensation insurance as required by the State of California,
with Statutory Limits, and Employer's Liability Insurance with a limit of no
less than One Million Dollars ($1,000,000.00) per accident for bodily injury
or disease. Contractor agrees to waive, and to obtain endorsements from
its workers' compensation insurer waiving subrogation rights under its
workers' compensation insurance policy against the City, its officers,
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agents, employees, and volunteers for losses arising from work performed
by Contractor for the City and to require each of its subcontractors, if any,
to do likewise under their workers' compensation insurance policies.
By execution of this Agreement, the Contractor certifies as follows:
I am aware of, and will comply with, Section 3700 of the Labor
Code, requiring every employer to be insured against liability of
Workers' Compensation or to undertake self-insurance before
commencing any of the work.
The Contractor shall also comply with Section 3800 of the Labor Code by
securing, paying for and maintaining in full force and effect for the duration
of this Agreement, complete Workers' Compensation Insurance, and shall
furnish a Certificate of Insurance to the City before execution of this
Agreement by the City. The City, its officers and employees shall not be
responsible for any claims in law or equity occasioned by failure of the
Contractor to comply with this section.
(d) Professional errors and omissions ("E&O") liability insurance with policy
limits of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence or claim, and Two Million Dollars ($2,000,000.00)
aggregate. Architects' and engineers' coverage shall be endorsed to
include contractual liability. If the policy is written as a "claims made" policy,
the retroactivity date shall be prior to the start of the work set forth herein.
Contractor shall obtain and maintain said E&O liability insurance during the
life of this Agreement and for five (5) years after completion of the work
hereunder. If coverage is canceled or non -renewed, and not replaced with
another claims -made policy form with a retroactive date prior to the
effective date of this Agreement, Contractor shall purchase "extended
reporting" coverage for a minimum of five (5) years after completion of the
work.
If the Contractor maintains higher limits or has broader coverage than the minimums
shown above, the City requires and shall be entitled to all coverage, and to the higher limits
maintained by the Contractor. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
5.2. Endorsements. The insurance policies are to contain, or be endorsed to contain,
the following provisions:
(a) Additional Insureds: The City of West Covina and its elected and appointed
boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on
behalf of the Contractor pursuant to its contract with the City; products and
completed operations of the Contractor; premises owned, occupied or used
by the Contractor; automobiles owned, leased, hired, or borrowed by the
Contractor.
(b) Notice of Cancelation: Each insurance policy required above shall provide
that coverage shall not be canceled, except with notice to the City.
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