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HomeMy WebLinkAboutC-1649aLl F6 d \IC -V el% f*4 " NA L AGREEMENT FOR CONSULTING -SERVICES 0 a 110 THIS AGREEMENT FOR PROFESSIONAL SERVICES (hereinafter "Agreement ") is made and entered into this Zhd day of bpilth„ketr, 199 41 , by and between the City of Arcadia, a municipal corporation, (hereinafter referred to collectively as Arcadia) and Associated Engineers, Inc. (hereinafter called "Consultant'). RECITALS WHEREAS, Arcadia has selected Associated Engineers, Inc. to undertake the professional services as fully described in Exhibit "A" (copy attached) for Additional Construction Engineering Services of Longden Avenue 30" Waterline Replacement project; and WHEREAS, Consultant represents that it has experience and technical competence to act as Consultant to Arcadia for the services required by this contract. NOW THEREFORE, the parties agree as follows: 1. REPRESENTATIVES OF THE PARTIES AND SERVICE OF NOTICE The representatives of the parties who are primarily responsible for the administration of this Agreement and to whom formal notices, demands and communications shall be given, are as follows: All notices and written communications sent to Arcadia under the Agreement shall be sent to the following address, unless authorized in writing to be sent elsewhere by Arcadia: CITY OF ARCADIA Attn: Dan A. Lazo, P.E. Public Works Service Department 240 W. Huntington Dr. P. O. Box 60021 Arcadia, CA 91066 -6021 All communications sent to Consultant shall be sent to: ASSOCIATED ENGINEERS, INC. Attn: Reginald A. Lamson 3311 E. Shelby Street Ontario, CA. 91764 1 Any such notices or written communications by mail shall be conclusively deemed to have been received by the addressee five (5) days after the deposit thereof in the U.S. Mail, first -class postage and properly addressed as noted above, or upon actual receipt thereof if delivered by personal service. 2. DESCRIPTION OF WORK Arcadia hereby engages Consultant, and Consultant accepts such engagement, to perform the services, set forth in the attached "Exhibit A" incorporated as part of this Agreement, Arcadia's principal representative, or representative's designee, shall have the right to review and inspect the work during the course of its performance as such times as may be specified by the representative. Consultant shall have no claim for compensation for any service or work which has not been authorized in writing by Arcadia. 3. COMMENCEMENT AND COMPLETION OF WORK A. The execution of this Agreement by the parties constitutes an authorization to proceed, unless otherwise provided by the terms of this Agreement. Because of the time schedule, work will be performed in a different integral during the project. Contractor will be notified when the consulting services are required and of any changes in the time schedule. B. The work described in Exhibit "A" shall be completed in accordance with the schedule as part of this Agreement. . C. If, at any time, the work is delayed due to suspension order by Arcadia, or due to any other cause which, in the reasonable opinion of Arcadia, is unforeseeable and beyond the control and not attributable to the fault or negligence of Consultant, the Consultant shall be entitled to an extension of the time equal to said delay, subject to Arcadia's right to terminate this Agreement pursuant to Sections 20 and 21 and to the requirements of the following Sections D & E. D. Consultant shall submit to Arcadia a written request for an extension of time prior to commencement of such delay, and failure to do so shall constitute a waiver thereof. Arcadia shall, in their sole discretion, determine whether and to what extent any extensions of time shall be permitted. E. No extension of time requested or granted hereunder shall entitle Consultant to additional compensation unless, as a consequence of such extension, additional work must be performed. In such event, Arcadia shall in good faith, consider a request for additional compensation submitted by Consultant. 4. DATA PROVIDED TO CONSULTANT Arcadia shall provide to Consultant to the extent feasible, all data, including reports, records, and other information, as requested by Consultant to perform this Agreement. 5. OWNERSHIP OF DOCUMENTS All files, records, reports, studies and other documents prepared or obtained by this Agreement shall be the property of Arcadia. Basic notes, computations, computer diskettes and similar data prepared or obtained by the Consultant under this Agreement shall, upon request, be made available to Arcadia without restriction or limitation on their use. Consultant shall deliver such materials to Arcadia according to the terms of this Agreement. Consultant shall have the right to make duplicate copies of such materials and documents for his /her files as may be authorized in writing by Arcadia. 6. RELEASE OF INFORMATION /CONFIDENTIALITY /LITIGATION A. All information gained by Consultant in performance of this Agreement shall'not be released by Consultant without Arcadia's prior written authorization. B. Consultant shall promptly notify Arcadia should Consultant, its officers, employees, agents, or sub- consultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request of court order from any party regarding this Agreement and the work performed thereunder. Arcadia retains the right, but not the obligation to represent Consultant and /or to be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with Arcadia and to provide Arcadia with the opportunity to review any response by Consultant with reference to the subject matter of this section'. 7. CONFLICT OF INTEREST Consultant covenants that neither they nor any officer nor principal of their firm have any interest in, nor shall they acquire any interest, directly or indirectly which will conflict in any manner or degree with the performance of the Agreement, no person having such interest shall be employed by them as an officer, employee, agent, or sub - consultants (see warranty- Section 16). 8. COMPENSATION AND PAYMENT A. Consultant agrees to provide the services set forth in the attached Exhibit; "A" hereto, for a fee based on time and material not -to- exceed Contract amount, which is sixty three thousand three hundred eighty seven dollars ($63,387). Should Arcadia request, in writing, that Consultant perform. add iti onal work and services beyond those under the Agreement, compensation for such services shall be on a time and materials basis as outlined in Exhibit "B" attached hereto and made a part hereof. 3 B. On or before the tenth (10th) day of each calendar month following the commencement of the work, Consultant shall cause to be made and submitted to Arcadia a written value of the time for all work completed and material incorporated into the project up to the first day of the month. If Arcadia requests, the Consultant shall provide Arcadia along with the invoice, copies or verification of all work performed for which Arcadia is being invoiced. In reviewing and approving such invoice, Arcadia may consider, in addition to other facts and circumstances, the relationship of the work completed to the work remaining to be done. Arcadia-shall have the right to retain ten percent (10 %) of the estimated cost of the work as partial security for Consultant's performance of this Agreement. Within thirty (30) days after approval of Consultant's invoice, Arcadia shall pay to Consultant that balance of such invoice after deducting therefrom all prior payments and all sums to be retained as partial security under the terms of this Agreement. C. Upon satisfactory completion of all work and services described in Exhibit "A ", and Arcadia's approval thereof Arcadia shall pay Consultant for the total amount remaining due for each increment or phase of the work, including all funds retained as partial security. Final payment shall be made by Arcadia to Consultant within thirty (30) days after Arcadia's written acceptance of the work. D. EXTRA SERVICES. If after work commences pursuant to this Agreement, it becomes apparent that additional work not originally contemplated as within the scope of this Agreement may be necessary such as that shown on Exhibit "A ", or otherwise, such services shall be performed, and Consultant compensated at Consultant's prevailing time and materials rate schedule as outlined in Exhibit "B ". The Consultant shall inform Arcadia in writing of the need for such additional work. No additional work shall be done without the prior written approval of Arcadia. 9. MANAGEMENT The City Manager or designee shall represent Arcadia in all matters pertaining to the administration of this Agreement, including without limitation, coordination of all necessary meetings and conferences, and review and approval of all products submitted by the Consultant. Authority to enlarge the scope of services or change the compensation due to Consultant is subject to approval of the City Council. 10. INDEPENDENT CONTRACTOR Consultant is and shall at all times be deemed to be an independent contractor and shall be solely responsible for the manner in which it performs the services required by the terms of this Agreement. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between M Arcadia and Consultant or any of the Consultant's employees or any sub - consultants. Consultant assumes sole responsibility for the acts of its employees and any sub - consultants as related to the services to be provided during the course and scope of their employment. Consultant, its agents, and employees, shall not be entitled to any right, privileges or benefits of and shall not be deemed to be Arcadia employees. Consultant shall have no power or authority to incur any debt, obligation or liability on behalf of Arcadia. 11. CONSULTANT'S PERSONNEL A. All services required under this Agreement shall be performed by Consultant, or under Consultant's direct supervision, and all personnel shall possess the qualifications, permits and license required by the State and local law to perform such services. B. Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing services required by the Agreement, and compliance with all reasonable performance standards established by Arcadia. C. Consultant shall comply with all federal and state statutes and regulations relating to the employer /employee relationship, including but not limited to, minimum wage, non - discrimination, equal opportunity, workers' compensation, hazardous /unsanitary or dangerous surroundings, the Fair Labor Standards Act, 29 U.S.C., 201, et. se g., and the Immigration Reform and Control Act of 1986, 8 U.S.C. 245(a). 12. SUBCONTRACTING, DELEGATION AND ASSIGNMENT A. This Agreement covers professional services of a specific and unique nature. Consultant shall not delegate, subcontract or assign its duties or rights hereunder, either in whole or in part, without the prior written consent of Arcadia. Any proposed delegation, assignment or subcontract shall provide a description of the services to be covered, identification and qualifications of the proposed assigned delegee or subcontractor, and an explanation of the proposed assignee, delegee or subcontractor, and an explanation of why and how the name was selected, including the degree of competition involved. Any proposed agreement with the assignee, delegee or subcontractor shall include the following: (1) The amount involved, together with Consultant's analysis of such cost or price, and (2) A provision requiring that nay- subsequent modification or amendment shal I be subject to prior written consent of Arcadia. 5 B. Any assignment, delegation or subcontract shall be made in the name of the Consultant and shall not bind or purport to bind Arcadia and shall not release the Consultant from any obligations under this Agreement including, but not limited to, the duty to properly supervise and coordinate the work. of employees, assignees, delegees and subcontractors. No such assignment, delegation or subcontract shall result in any increase in the amount of total compensation payable to the Consultant'under this Agreement. 13. NON - DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY A. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, religion, ancestry, sex, national origin, disabilities or age. 14. INDEMNITY AND INSURANCE A. HOLD HARMLESS AND INDEMNITY Consultant agrees to indemnify and hold harmless Arcadia, their officers, and employees from any claims, suits, and liabilities for damage to person or property arising out of Consultant's errors, omissions or negligent acts. B. INSURANCE Consultant shall carry comprehensive liability insurance with combined single limits of at least one million dollars ($1,000,000) naming the City of Arcadia as additional insured. Proof of such insurance in a form and content approved by the Arcadia City Attorney is a condition precedent to execution of this Agreement by Arcadia. Insurance shall be maintained with insurers listed "A" or better in the Best's Insurance Guide and authorized to be business in ;the , State of California. Consultant shall also maintain professional liability insurance covering errors and omissions providing protection of at least one million dollars ($1,000,000) for errors and omissions with respect to losses, claims, and liability arising, from action of Consultant in performing pursuant to this Agreement at the sole cost of Consultant. C. WORKERS' COMPENSATION AND LIABILITY A program of Workers' Compensation insurance or state - approved self - insurance program in an amount, form and as broad as to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with limits of a least $100,000 per occurrence. Should the Consultant be self - employed, he /she must certify under Section 3800 of the California Labor Code, the performance of the work for which this contract is issued is without employing any person in any manner so as to become subject to the Workers' Compensation Laws of California. ;1 D. INSURANCE REQUIREMENTS Policies providing for bodily injury and property damage coverage shall contain the following: (1) An endorsement extending coverage to Arcadia as additional insured, in the same manner as the named insured, as respect to liability arising out of the performance or any work under the Agreement. Such. insurance shall be primary insurance as respects the interest of Arcadia, and any other insurance maintained by Arcadia shall be considered excess coverage and not contributing insurance with the insurance required here under. (2) "Severability of Interest" clause. (3) Provision or endorsement stating that such insurance, subject to all of its other terms and conditions, applies to the liability assumed by Consultant under the Agreement, including without limitation that set forth in Section'14.A. (4) Prior to commencement of any work and as a condition precedent to execution of this contract by the City, Consultant shall deliver to Arcadia copies of all required policies and endorsements to the required policies. (5) The requirements as to the type and limits of insurance to� be maintained by Consultant are not intended to and shall not in any manner limit or qualify Consultant's liabilities and obligations under the Agreement. 15. VERIFICATION OF COVERAGE Consultant shall immediately furnish certificates of insurance and other proof as requested to Arcadia evidencing the insurance coverage (subject to approval by the City Attorney) above required_ prior to the commencement of performance of services hereunder. These certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to Arcadia. Consultant agrees that if Consultant commences work under this Agreement without first providing Arcadia copies of the required insurance certificates, that Consultant does so at its' own and sole risk. In the event Consultant's proof of insurance is not provided, Arcadia shall have no obligations to compensate Consultant for such work. 7 16. CONSULTANT'S WARRANTIES AND REPRESENTATIONS Consultant warrants and represents to Arcadia as follows: A. Consultant has no knowledge that any officer or employee of Arcadia has any interest whether contractual, non - contractual, financial, proprietary or otherwise, in this transaction or in the business of the Consultant, and that if any such interest comes to the knowledge of Consultant at any time, a complete written disclosure of such interest will be made to Arcadia, even if such interest would not be deemed as prohibited "conflict of interest" under applicable laws. B. Upon the execution of this Agreement, Consultant has no interest, direct or indirect, in any transaction or business entity which would conflict with or in any manner hinder the performance of services and work required by this Agreement, nor shall any such interest be acquired during the term of this Agreement. 17. RESOLUTION OF DISPUTES (ATTORNEY FEES) A. Disputes regarding the interpretation or application of any provisions of this Agreement shall, to the extent reasonably feasible, be resolved through good faith negotiations between the parties. B. If any action at law or in equity is brought to enforce or interpret any provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees, costs and necessary disbursements, in addition to such other relief as may be sought and awarded. 18. MODIFICATION OF AGREEMENT The terms are subject to modification by mutual agreement between Arcadia and Consultant whom such changes shall be incorporated by authorization written amendments to this Agreement. The parties agree that the requirements for prior written changes, amendments, or modifications to the Agreement may not be waived and any attempted waiver shall be void. 19. TERMINATION DATE A. The City may terminate this Agreement without cause upon five (5) days written notice to Consultant to the Address specified in this Agreement. Notice may include telephonic communication to Consultant to cease work. Should the City terminate this Agreement, Consultant agrees to immediately discontinue performance and deliver to City the work which he /she has completed, including all maps, data reports and like materials. Consultants shall receive a fee equal to an amount which bear the same relationship to the total fee payable pursuant to Section 8 that the amount of work to be performed by Consultant to this Agreement. N. B City may terminate this Agreement with cause effective immediately upon written notice of such termination to Consultant, based upon the concurrence of any of the following events: (1) Material breach of this Agreement by Consultant; (2) Cessation of Consultant to be licensed, as required; (3) Failure of Consultant to substantially comply with any applicable federal, state or local law or regulation; (4) Filing by or against Consultant of any petition under any law for the relief of debtors; and (5) Filing of a criminal complaints against Consultant for any crime, other than minor traffic offenses. C. WORK PRODUCT. In the event of termination, Consultant shall, at City's request, promptly surrender to City all completed work and work in progress and all materials, records, computerized information and notes developed, procured, or produced pursuant to this Agreement. Consultant may retain copies of such work product as a part of its record of professional activity. 20. TERMINATION FOR CAUSE A. Arcadia may, by written notice to Consultant, terminate the whole or any part of this Agreement in any of the following circumstances: (1) If the Consultant fails to perform the services required by the Agreement within the time specified herein or any authorized extension thereof; or (2) If Consultant fails to perform the services called for by this Agreement or so fails to progress as to endanger performance of this Agreement in accordance with its terms, and in either of these circumstances does not correct such failure within a period of ten (10) business days (or such longer period as Arcadia may authorize in writing) after receipt of notice from Arcadia specifying such failure. B. In the event Arcadia terminates this Agreement in whole or in part as provided above in subsection A to this Section 20, Arcadia may procure, upon such terms and in such manner as it may deem appropriate, services similar to those terminated. 9 C. If this Agreement is terminated as provided above in subsection A, Arcadia may require Consultant to provide all finished or unfinished documents, data, studies, photographs, reports, etc. prepared by Consultant. Upon such termination Consultant shall be paid an amount equal to the contract amount for services performed to date of termination, less the cost of hiring another consultant to complete Consultant's service, at Arcadia's discretion. In ascertaining the value of the work performed up to the date of termination, consideration shall be given to the completed work and work in progress, to complete and incomplete studies, and to other documents delivered to Arcadia and to authorize reimbursable expenses. D. If, After notice of termination for the Agreement under the provision of this Section, it is determined for any reason, that Consultant was not in default, or that the default was excusable, then the rights and obligations of the parties shall be the same as if the notice of termination had been pursuant to Section 21. 21. TERMINATION FOR CONVENIENCE Arcadia may terminate this Agreement at any time without cause by giving seven (7) days written notice to Consultant of such termination and specifying the effective date thereof. In that event, all finished or unfinished documents and other materials shall, at the option of Arcadia, become its property. If this Agreement is terminated by Arcadia as provided herein Consultant will be paid compensation proportionate to the actual amount of work completed in relation to the total compensation amount provided for this Agreement. 22. EXHIBITS The following exhibits to which reference is made in this Agreement are deemed incorporated herein in their entirety: Exhibit "A ": Proposal for Professional Services Exhibit "B ": Professional Fees and Rates 23. ENTIRE AGREEMENT AND AMENDMENTS A. This Agreement supersedes all prior proposals, agreements and understandings between the parties and may not be modified or terminated orally. B. No attempted waiver of any of the provisions hereof, not any modification in the nature, extent or duration of the work to be performed by Consultant hereunder, shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. 10 24. GOVERNING LAW This Agreement shall be governed by the laws of the State of California. 25. EFFECTIVE DATE This Agreement shall become effective as of the date set forth below in which the last of the parties, whether Arcadia or Consultant, executes said Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their respective officers thereunto duly authorized. CITY OF ARCADIA Dated: �`,� , 1999 By gno City Manager CONSULTANT +660C-i4 -TC .TytG Dated: �1'e 11999 By President APPROVED AS TO FORM: By ? / City Attorney Dated: / " �� , 1999 11