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HomeMy WebLinkAboutAGMT - McArdle Consulting, Kevin J. PROFESSIONAL SERVICES AGREEMENT INTERIM TENNIS CENTER MANAGEMENT SERVICES AND CONSULTING Between • C• .);" SE' LB'`�, I*/ kipb6c, 0_ i$ i 0•7::"y:7'4 0•7::"y:7'4 '4c�UNTy c i'' City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Kevin J. McArdle Consulting 872 Clearwater Court Walnut, CA 91789 (909) 260-6892 This Professional Service Agreement ("the Agreement") is made as of June 25. 2012, by and between Kevin J. McArdle Consulting, ("Consultant"), a professional management consultant, and the City of Seal Beach ("City"), a California charter city, (collectively, "the Parties"). 1 of 10 RECITALS A. City desires certain professional services. B. Consultant represents that it is qualified and able to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide those services ("Services") set forth in the attached Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. From time to time, City Manager may authorize additional services ("Additional Services") in addition to those Services set forth in Exhibit A. 1.3. Consultant shall perform all services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.4. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 2.0 Term 2.1 This term of this Agreement shall commence July 1, 2012 and expire on June 30, 2013. At the sole discretion of the City, the City Manager may extend the Agreement on a month-to-month basis until such time that all Services are completed in a manner reasonably satisfactory to City, by providing notice to Consultant at least 30 days prior to the expiration date. 3.0 Consultant's Compensation 3.1 City shall pay Consultant a fixed sum of $5,770 each month for satisfactory performance of the Services. 3.2 City shall pay Consultant at the rate of $150 for each hour of Additional Services authorized by the City Manager pursuant to Section 1.2. In no event shall City pay more than $2250 for Additional Services in any one month. 2 of 10 4.0 Method of Payment 4.1. Consultant shall submit to City invoices on a monthly basis for all services rendered pursuant to this Agreement and such invoices shall be paid within a reasonable time after the City receives said invoices. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 4.2. Upon 24-hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the termination of this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by City, without cause, upon giving Consultant written notice thereof not less than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by Consultant based on reasonable cause, upon giving City written notice thereof not less than 60 days prior to the date of termination. 5.3. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 6.0 Party Representatives 6.1. The City Manager is the City's representative for purposes of this Agreement. 6.2. Kevin J. McArdle will be the Consultant's primary representative for purposes of this Agreement. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: 3 of 10 To City: City of Seal Beach 211 - 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Kevin J. McArdle Consulting 872 Clearwater Court Walnut, California 91789 Attn: Kevin J. McArdle 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 8.0 Independent Contractor 8.1. Consultant is an independent contractor and not an employee of the City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 8.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's 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. 9.0 Subcontractors 9.1 No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 10.0 Assignment 10.1 Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent 4 of 10 of City. Any purported assignment without such consent shall be void and without effect. 11.0 Insurance 11.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Consultant must, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A: VIII, licensed to do business in California, and satisfactory to the City. Coverage must be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); and (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto). Consultant must maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; and (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 12.0 Indemnification, Hold Harmless, and Duty to Defend 12.1 Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence and/or willful misconduct of the City, and its employees. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted 5 of 10 against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. 13.0 Equal Opportunity 13.1 Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non- discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 14.0 Labor Certification 14.1 By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 15.0 Entire Agreement 15.1 This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both Parties. 16.0 Severability 16.1 The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 17.0 Governing Law 17.1 This Agreement shall be governed by and construed in accordance with the laws of the State of California. 6 of 10 18.0 No Third Party Rights 18.1 No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 19.0 Waiver 19.1 No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 20.0 Prohibited Interests; Conflict of Interest 20.1. 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 H. 1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 20.2. Consultant further warrants and maintains 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. 20.3. Consultant warrants and maintains that it 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 prohibited "conflict of interest" under applicable laws as described in this subsection. 7 of 10 21.0 Attorneys' Fees 21.1 If either party commences an action against the other party, legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 22.0 Exhibits 22.1 All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 23.0 Corporate Authority 23.1 The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, the Consultant is formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH CONSULT T By: R• , By: if %FR. Ingram, City t ager Kevin IdArdle, President Attest: By: WA, aLin a Devine, ity Clerk Approved as to Form: Quinn Ba r w, City Attorney 8 of 10 Exhibit A Scope of Work and Fee Proposal Scope of Services Consultant shall provide the following services at the Seal Beach Tennis Center: • Management Services o Provide public facilities for the purpose of leisure time and recreation activities and health enrichment for general public wellness and fitness. o Take reasonable steps to improve the Tennis Center; be a good steward of it; monitor, inspect and properly manage the facilities and grounds; maintain tennis courts in good playing condition. o Operate, manage and supervise the clubhouse, workout room and locker rooms. o Promptly notify the City when Tennis Center facilities require repairs. o Provide supervision of staff at the Tennis Center to insure that needs of users are met. • Professional Review and Recommendations o Observe operations, programs, staffing and facilities; conduct professional research; and provide CITY with recommended alternatives and recommendations relating to the following: • Current tennis programming and operations • Potential additional/alternate recreation programming • Potential expanded and/or alternative future uses of the site • Potential improvements to the facilities • Staff Development Program o Research staff training and development needs and plan/implement appropriate training sessions to maximize success • Communications and Marketing Strategies o Research current marketing and communications strategies/techniques and provide recommendations for potential expansion and/or improvement • Fund Development Strategies o Evaluate effectiveness of current revenue maximization efforts and recommend potential areas for expansion and/or improvement, including possible development of a fundraising program • On-Site Consultant Supervision 9 of 10 o Provide professional on-site supervision of current programs, operations and staffing at Tennis Center during designated on-site hours • City Master Plan Coordination and Integration o Coordinate and integrate plans for current and future use of Tennis Center with City Master Planning efforts • Tennis Center Strategic Plan o Upon completion of above research and studies, assist City in preparing a new Five Year Strategic Plan for the Tennis Center facility Consultant Work Schedule Consultant shall complete the Scope of Services in accordance with the following work schedule parameters: • Consultant shall provide on-site facility supervision for 20 hours during each work week* • Consultant shall provide additional professional consulting work as identified in the Scope of Services for an average minimum of 15 hours each month in Consultant's office *Hours shall be scheduled by Consultant, keeping in mind the needs of the facility programs and operations. On-site hours will be scheduled by Consultant over 3-4 days during each work week. The Agreement includes forty-six (46) work weeks during the one year contract. Due to previous scheduling commitments, Consultant is not available during the remaining six (6) weeks of the year or on Saturdays between September 1 and December 31. Fee Consultant's Fee shall be as follows: • Flat fee of $5,770 each month for the term of the Agreement for all Services provided, including but not limited to Consultant's professional time, on-site supervision hours, office clerical work, and all expenses incurred in connection with providing the services, including but not limited to travel costs, Consultant supplies and Consultant liability insurance • Additional Services shall be billed at $150 per hour • If authorized in writing by the City Manager, the City may reimburse Consultant for extraordinary expenses (e.g., additional copies of submitted reports and recommendations) actually incurred and verified through invoices or receipts. 10 of 10