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HomeMy WebLinkAboutAGMT - Hamner, D. Michael (Architectural Design Svcs PD) '. • • PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECTURAL DESIGN SERVICES — POLICE DEPARTMENT RENOVATION PROJECT No. BG0801 • between City of Seal Beach 211 8 Street Seal Beach, CA 90740 D. Michael Hamner AIA, Architect 1131 Kenton Drive Monterey Park, CA 91755 THIS AGREEMENT is made and entered into this 14th day of April 14, by and between the City of Seal Beach, a municipal corporation ( "City ") and D. Michael Hamner AIA, Architect, a sole proprietor ( "Consultant "). RECITALS A. City proposes to have Consultant perform the services described herein below; and B. Pursuant to the authority provided by Government Code Section 37103, City desires to engage Consultant to design the project(s) in the manner set forth herein and more fully described in Section 1; and C. Consultant represents: the principal members of Consultant are qualified professional architects, fully qualified to perform the design services contemplated by this Agreement in a good and professional manner; and it desires to perform such services as provided herein; and D. No official or employee of City has a financial interest, within the provision of California Government Code, Sections 1090 -1092, n the subject matter of this Agreement. Mike'a MacPro l D Michael Office Seal Beach PD PSA Police Renovation Hamner DOC —1— • • NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: 1. Consultant's Services. a. Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, City hereby engages Consultant to perform the technical and professional services ( "Services ") set forth in Consultant's proposal dated March 10, 2008 ( "Proposal") attached hereto as Exhibit "A" and incorporated by this reference. The nature, scope, and level of the Services to be performed by Consultant are more particularly described in Exhibit "A ". In the event of any inconsistencies between the Proposal and this Agreement, the terms and provisions of this Agreement shall control. b. Time for Performance. Consultant shall perform all services under this Agreement on a timely, regular basis consistent with industry standards for professional skill and care. c. Standard of Care. As a material inducement to City to enter into this Agreement, Consultant hereby represents that it has the experience necessary to undertake the services to be provided. In light of such status and experience, Consultant hereby covenants that it shall follow the customary professional standards in performing all services. d. Familiarity with Services. By executing this Agreement, Consultant represents that, to the extent required by the standard of practice, Consultant i. has investigated and considered the scope of services to be performed, ii. has carefully considered how the services should be performed, and iii. understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. Consultant represents that Consultant, to the extent required by the standard of practice, has investigated the subject sites and is reasonably acquainted with the conditions therein. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of services, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant risk until written instructions are received from the City Representative. e. Compliance with Americans with Disabilities Act. All conceptual design plans prepared by Consultant for the Project shall comply with the Americans with Disabilities Act (42 U.S.C. Section 12001 et seq.). Mrkds M oProl D Michael Office Seal Beach PD PSA Police Renovation Hamner DOC -2- • • 2. Term of Agreement. a. This Agreement is effective as of April 14, 2008 (the "Effective Date "), and shall remain in full force and effect until Consultant has rendered the services required hereunder, unless sooner terminated as provided in Section 15 herein. 3. Compensation. a. Compensation. City shall compensate Consultant at its regular hourly rates set forth in Exhibit `B ". The cost of the project shall not exceed the not -to- exceed amounts shown in Exhibit "A" unless such additional compensation is approved by the City Council. City shall not withhold any federal, state or other taxes, or other deductions. b. Additional Services. City shall not pay Consultant for additional services unless the City Council authorizes, in advance, such services. City shall compensate Consultant for any authorized extra services at the hourly rates set forth in Exhibit aa 4. Method of Payment. a. Invoices. Consultant shall submit to City monthly invoices for the services performed pursuant to this Agreement. The invoices shall describe in detail the services rendered during the period and shall separately describe any extra services authorized by the City Council. Any invoice claiming compensation for extra services shall include appropriate documentation of the City Council's prior authorization of such services. All invoices shall be remitted to the following address: Department of Public Works, 211 8 Street, Seal Beach, CA 90740. b. City shall review such invoices and notify Consultant in writing within twenty business days of any disputed amounts. c. City shall pay all undisputed portions of the invoice within thirty calendar days after receipt of the invoice up to the not -to- exceed amounts set forth in Section 3. d. All records, invoices, time cards, cost control sheets and other records maintained by Consultant shall be available for review and audit by the City. 5. Representatives. a. City Representative. For the purposes of this Agreement, the contract administrator and City's representative shall be the Director of Public Works, or such other person as the Director designates in writing (hereinafter the "City Representative "). It shall be Consultant's responsibility to assure that the City Milo'. MecProl D Mrcheel Office Seal Beech PD PSA Police Renovation Hamner DOC — 3 - • • Representative is kept informed of the progress of the performance of the services, and Consultant shall refer any decisions that must be made by City to the City Representative. Unless otherwise specified - herein, any approval of City required hereunder shall mean the approval of the City Representative. b. Consultant Representative. For the purposes of this Agreement, D. Michael Hamner, is hereby designated as representative of Consultant authorized to act in its behalf with respect to the services specified herein and make all decisions in connection therewith (the "Responsible Representative "). It is expressly understood that the experience, knowledge, capability and reputation of the Responsible Representative were a substantial inducement for City to enter into this Agreement. Therefore, the Responsible Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. Consultant may not change the Responsible Representative without the prior written approval of City, which approval shall not be unreasonably withheld. 6. Consultant's Personnel. a. All Services shall be performed by Consultant or under Consultant's direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by State and local law to perform such Services, including, without limitation, a City of City business license as required by the City Municipal Code. b. Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the standard of care set forth in Section 7 below. c. Consultant shall be responsible for payment of all employees' and subconsultants' wages and benefits, and shall comply with all requirements pertaining to employer's liability, workers' compensation, unemployment insurance, and Social Security. d. Consultant shall indemnify and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of city or agency officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's alleged violations of personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 6. 7. Standard of Performance. a. Consultant shall perform all services to customary professional standards and in a manner reasonably satisfactory to City. - M ke's MacProl D hitched Office Seal Beach PD PSA Police Renovenon Hamner DOC -4- f , • • • 8. Ownership of Work Product. a. Ownership of Plans. All plans, specifications, reports, studies, tracings, maps, drawings, blueprints, or other written material (collectively "Plans" in this Section 8) prepared or obtained by Consultant in the course of performing the Services shall be and remain the property of City without restriction or limitation upon its use or dissemination by City, and Consultant shall convey and transfer all copyrightable interests in the Plans to City. Basic survey notes, sketches, charts, computations and similar data prepared or obtained by Consultant under this Agreement shall, upon request, be made available to City. Such material shall not be the subject of a copyright application by Consultant. Any reuse by City of any such materials on any project other than the Project shall be at the sole risk of City unless City compensates Consultant for such use. City agrees to indemnify, defend and hold harmless Consultant against any claims, losses, costs or damages as a result of City's reuse of the Plans without compensation to, or prior authorization of, Consultant. In the event of the return of the Plans to Consultant or its representative, Consultant shall be responsible for their safe return to City. Consultant shall be entitled to retain copies of the Plans for Consultant's files. Under no circumstances shall Consultant fail to deliver any draft or final plans, drawings or specifications to City upon written demand by City for their delivery, notwithstanding any disputes between Consultant and City concerning payment, performance of the contract, or otherwise. This Covenant shall survive the termination of this Agreement. b. Public Records Act Disclosure. Consultant has been advised and is aware that all reports, documents, information and data including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, 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 the California Government Code Section 6254.7, and of which Consultant 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. They 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. c. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required bye the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. Mike's MacPro1 D Michael Office Seal Beach PD PSA Police Renovation Hamner DOC -5- .�. • • 9. Status as Independent Contractor. a. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City. Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and to defend, 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. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant's employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section 9. 10. Confidentiality. a. Consultant may have access to financial, accounting, statistical, and personnel data of individuals and City employees. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. 11. Conflict of Interest. a. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code lohlx'a Macho' D Michael Office Seel Beach PD PSA Pollee Renovation Hamner DOC -6- .' r• • • §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. b. Consultant further represents that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. c. Consultant has no knowledge that , any officer or employee of City has any interest, whether contractual, non - contractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibi "conflict of interest" under applicable laws as described in subsection 11.4 , atop. 12. Indemnification. a. Indemnity for Professional Services. In connection with its professional services, Consultant shall defend, hold harmless and indemnify City, and its elected officials, officers, employees, servants, designated volunteers, and those City agents serving as independent contractors in the role of city or agency officials, (collectively, "Indemnities "), with respect to any and all claims, demands, damages, liabilities, losses, costs or expenses (collectively, "Claims "), including but not limited to Claims relating to death or injury to any person and injury to any property, to the extent to which they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant or any of its officers, employees, subcontractors, or agents in the performance of its professional services under this Agreement, but not to the extent the result of the negligence or willful misconduct of the City or of other third parties not under the control or the supervision of Consultant. Consultant's obligation to indemnify does not include the obligation to defend actions or proceedings brought against the City but rather to reimburse the City for attorney's fees and costs incurred by the City in defending such actions or proceedings brought against the City to the extent caused by Consultant; but not for any loss, injury, death or damage caused by the negligence or willful misconduct of City or of other third parties not under the supervision or control of Consultant. b. Other Indemnities. In connection with all Claims not covered by Section 1211,. • Yh S Consultant shall defend, hold harmless and indemnify the Indemnities with respect to any and all Claims including but not limited to Claims relating to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to the Mikes Macao! D Mn:hnel Office Seal Bench PD PSA Palms Renovation Hamner DOC -7- • • acts or omissions of Consultant or any of its officers, employees, subcontractors, or agents in the performance of this Agreement. Consultant shall defend Indemnities in any action or actions filed in connection with any such Claims with counsel of City's choice, and shall pay all costs and expenses, including actual attorney's fees and experts' costs incurred in connection with such defense. c. Nonwaiver of Rights. Indemnities do not, and shall not, waive any rights that they may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. d. Waiver of Right of Subrogation. Consultant, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnities, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor. e. Survival. The provisions of this Section 12 shall survive the termination of the Agreement and are in addition to any other rights or remedies which Indemnities may have under the law. Payment is not required as a condition precedent to an Indemnity's right to recover under this indemnity provision, and an entry of judgment against a Consultant shall be conclusive in favor of the Indemnity's right to recover under this indemnity provision. 13. Insurance. a. Liability Insurance. Consultant shall procure and maintain in full force and effect for the duration of this Agreement insurance against claims for injuries to persons or damages to property and professional negligence which may arise from or in connection with the performance of the services hereunder by Consultant, and its agents, representatives, employees and subconsultants. b. Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as: i. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). ii. Professional Liability insurance in a form approved by the City. c. Minimum Limits of Insurance. Consultant shall maintain limits no less than: i. General Liability: $1,000,000 per occurrence and in the aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit. Mske's MeoPro l D M,ehcel Office Seel Beach PD PSA Pohx Renovation Hamner DOC -8- •� M • • ii. Professional Liability: $500,000 per claim/aggregate. d. Deductibles and Self- Insured Retentions. Consultant shall inform City of any deductibles or self - insured retentions except with respect to professional liability insurance. e. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: i. City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of city or agency officials, are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of city or agency officials which are not also limitations applicable to the named insured. ii. For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of city or agency officials. Any insurance or self - insurance maintained by City, their officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of city or agency officials shall be excess of Consultant's insurance and shall not contribute with it. iii. Consultant'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. iv. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or materially modified except after 30 days prior written notice by first class mail has been given to City. v. Each insurance policy, except for the professional liability policy, required by this clause shall expressly waive the insurer's right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city or agency officials. f. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII unless waived in writing by City's Risk Manager. Mica's MacProl D Maul Offiu Seal Beach PD PSA Police Renovation Hamner DOC -9- •' sa ., • • • g. Verification of Coverage. No work or services under this Agreement shall commence until Consultant has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. Proof of insurance must be sent directly to the City Clerk's Office. h. Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall furnish separate certificates and endorsements for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein unless otherwise approved in advance in writing by City. 14. Cooperation. a. In the event any claim or action is brought against City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require. City shall compensate Consultant for any litigation support services in an amount to be mutually agreed upon by the parties. 15. Termination. a. Either party shall have the right to terminate this Agreement at any time for any reason on written notice to the other party. In the event either party exercises its right to terminate this Agreement, City shall pay Consultant for any services rendered prior to the effective date of the termination. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation. 16. Suspension. a. City may, in writing, order Consultant to suspend all or any part of the Consultant's Services for the convenience of City or for work stoppages beyond the control of City or Consultant. Subject to the provisions of this Agreement relating to termination, a suspension of the Services does not void this Agreement. 17. Notices. a. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Consultant's and City's regular business hours or by facsimile before or during Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, Mice's MacProl D M1chacl Office Seal Beach PD PSA Pollee Renovatmn Hamner DOC — 1 O- �. • • designate in writing pursuant to the provisions of this section. All notices shall be addressed as follows: If to City: City Clerk City of Seal Beach 211 8 Street Seal Beach, CA 90740 Fax: (562) 431 -4067 With a copy to: Director of Public Works City of Seal Beach 211 8 Street Seal Beach, CA 90740 Fax: (562) 431 -8763 18. Non - Discrimination and Equal Employment Opportunity. a. In the performance of this Agreement, Consultant shall not discriminate against any employee, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. Consultant will take affirmative action to ensure that subconsultants and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 19. Non - Assignability; Subcontracting. a. Consultant shall not assign, transfer, or subcontract any interest in this Agreement or the performance of any of Consultant's obligations hereunder. Any attempt by Consultant to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be null, void and of no effect. 20. Compliance with Laws. a. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Consultant performs the Services. 21. Non- Waiver of Terms, Rights and Remedies. Mike'. M oProl D Mlehael Office Seal Beach PD PSA Pohce Renovation Hamner DOC -11- a" , s fit►' • • a. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. 22. Attorney's Fees. a. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including actual attorney's fees. 23. Exhibits; Precedence. a. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. 24. Construction. a. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 25. Entire Agreement. a. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. Mtke'a MacProl D Michael Office Seal Beach PD PSA Pollee Renovation Hamner DOC -12- of • a { r+' • • IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF SEAL BEACH CONSULTANT By: ��1? Its: City Manager Its: C W 09e e Attest: By: Its: City lerk (Two signatures required for corporations — California Corporations Code Section 313) APP' OVED A, 0 FORM: Or City Attorney Mike's MacPro1 D Michael Office Seal Beach PD PSA Police Benovahon Hamner DOC — 1 3 - EXHIBIT "A" PROPOSAL , • EXHIBIT "B" FEE SCHEDULE STANDARD HOURLY FEE SCHEDULE The Client agrees to pay Consultant as compensation for all authorized work included in the Scope of Services heretofore stated at the hourly rates below. PRINCIPAL ARCHITECT $120.00/HR ASSOCIATE ARCHITECT $90.00/HR CAD DRAFTSMAN $70.00/HR ADMINISTRATIVE /SECRETARIAL $50.00/HR