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HomeMy WebLinkAboutAGMT - Nichols Consulting (See reimbursement from State of CA for law enforcement - related costs)PROFESSIONAL SERVICES AGREEMENT Between City of Seal Beach 211 8th Street Seal Beach, CA 90740 Nichols Consulting 185744 th Street Sacramento, CA 95819 (916) 803 -6750 This Professional Services Agreement ( "the Agreement') is made as of August 1st, 2018 (the "Effective Date "), by and between Nichols Consulting ( "Consultant'), a sole proprietor, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). 5 7296-000 1 \221 3008v2.doc A. City desires certain professional services. B. Consultant represents that it is qualified and able to provide City with such services by virtue of its experience and the training, education and expertise of its principals and employees, and the City enters this Agreement in reliance thereon. 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(Nichols Consulting — Scope of Services and Compensation "), and Exhibit B (Consultant's Proposal, dated t'1i3 which are hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and /or Exhibit B and this Agreement, this Agreement shall control. 1.2. Consultant warrants that it possesses the professional expertise necessary to perform the Services. City relies upon the skill of Consultant, and Consultant's staff, if any, to do and perform the Services in a skillful, competent, and professional manner, and Consultant and Consultant's staff, shall perform the Services in such manner. Consultant shall, at all times, meet or exceed any and all applicable professional standards of care. The acceptance of Consultant's work by City shall not operate as a release of Consultant from such standard of care and workmanship. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 1.4. Consultant will not be compensated for any work performed not specified in the Scope of Services unless City authorizes such work in advance and in writing. The City Manager may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization. 2.0 Term 2of13 57296- 0001\2213008v2.doc This term of this Agreement shall commence as of the Effective Date and shall continue for a term of 1 (one) year unless previously terminated as provided in Section 5.0 of this Agreement. 3.0 Consultant's Compensation As full and complete compensation for Consultant's services provided under this Agreement, City shall pay Consultant a contingency fee of fifteen percent (15 %), in a total "NOT -TO- EXCEED" amount of $2,000, in accordance with the Scope of Services and Compensation (Exhibit A) and Consultant's Proposal (Exhibit B). No claims for additional compensation shall be allowed unless authorized in advance by City in writing. Any additional work authorized by City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit A. City shall make payment for additional services and expenses in accordance with Section 4.0 of this Agreement. 4.0 Method of Payment 4.1. Consultant shall submit to City monthly invoices for all services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the services were rendered and shall describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant all undisputed portions of the invoice within 30 days after receipt. 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, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. 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. 3of13 S7296- 000112213008v2.doc 5.3. If the Agreement is terminated by City, and provided Consultant is not then in breach, Consultant shall be paid for services satisfactorily rendered to the last working day the Agreement is in effect, and Consultant shall have no other claim against City by reason of such termination. 6.0 Party Representatives 6.1. The City Manager is City's representative for purposes of this Agreement. 6.2. Andy Nichols is 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: To City: City of Seal Beach 211 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Nichols Consulting 1857 44th Sacramento, CA 95819 Attn: Andy Nichols 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 retained by City only to the extent set forth in this Agreement, and Consultant's relationship to City is that of an independent contractor and not an employee of City. Consultant shall be free to dispose of all portions of Consultant 's time and activities that Consultant is not obligated to devote to City in such a manner, and to such persons, firms or corporations, as Consultant sees fit except as expressly provided in this Agreement. 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 4of13 S7296-0001 12 21 3 00&2.doc shall not, at any time, or in any manner, represent that it or any of its principals, officers, agents or employees are in any manner agents or employees of City. 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 8.0. 9.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of City. Consultant is fully responsible to City for the performance of any and all subcontractors. 10.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent 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 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 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 City if requested. All certificates and endorsements shall be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Consultant shall, 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 5of13 57296 -0001 \221300M.doc 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 City. Coverage shall 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); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 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; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim /aggregate. 11.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Consultant's scheduled underlying coverage and that any insurance or self - insurance maintained by City, its directors, officials, officers, employees, agents and volunteers shall be excess of Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Consultant or for which Consultant is responsible. 11.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to City, its directors, officials, officers, employees, agents, and volunteers. 11.5. Any deductibles or self- insured retentions shall be declared to and approved by City. Consultant guarantees that, at the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured 6of13 S7296- 0001\221300M.doc retentions as respects City, its directors, officials, officers, employees, agents, and volunteers; or (2) Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 12.0 Indemnification, Hold Harmless, and Duty to Defend Consultant and City agree that City, its elected officers, employees, agents and officials should, to the fullest extent permitted by law, be fully protected from any loss, injury, damage, claim, liability, lawsuit, cost, expense, attorney's fees, litigation costs, defense costs, court costs and /or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to City and the Indemnitees. Consultant acknowledges that City would not have entered into this Agreement in the absence of the commitment of Consultant to indemnify and protect City and the Indemnitees, as set forth in this Agreement. 12.1. Indemnity for Professional Services. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, protect, defend, hold harmless and indemnify City, its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees" in this Section 12.0), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys and other professionals, and all costs associated therewith (collectively "Claims "), whether actual, alleged or threatened, to the extent arising out of, pertaining to, or relating to, in whole or in part, the negligence, recklessness or willful misconduct of Consultant, and /or its officers, agents, servants, employees, subcontractors, contractors or their officers, agents, servants or employees (or any entity or individual for that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Claims with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith. 12.2. Other Indemnities. Other than in the performance of professional services, and to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, protect, defend, hold harmless and indemnify the Indemnitees (as defined in Section 12.1)from and against any and all claims, demands, causes of action, costs, expenses, proceedings, judgments, penalties, liens, liability, loss, damage or injury, of any nature whatsoever, including fees of 7of13 57296 -0001 \221300M.doc accountants, attorneys and other professionals, and all costs associated therewith, and the payment of all consequential damages (collectively "Damages'), in law or equity, whether actual, alleged or threatened, which arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, suppliers, or contractors, or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Damages arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Damages with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith. 12.3. The obligations of the Consultant under this or any other provision of this Agreement shall not be limited by the provisions of any workers' compensation act or similar act. The Consultant expressly waives any statutory immunity under such statutes or laws as to the Indemnitees. The Consultant's indemnity obligation set forth in this Section 12.0 shall not be limited by the limits of any policies of insurance required or provided by the Consultant pursuant to this Agreement. 12.4. Consultant's covenant under this Section 12.0 shall survive the expiration or termination of this Agreement. 13.0 Equal Opportunity 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 Compliance With Laws In the performance of the work required by this Agreement, the Consultant shall abide by and conform with and to any and all applicable laws of the United States and the State of California, and with the City's Municipal Code, ordinances, regulations and policies. 8of13 57296- 0001\2213008v2.doc 15.0 Labor Certification 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. 16.0 Entire Agreement 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. 17.0 Severability 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. 18.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 19.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 20.0 Waiver 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. 21.0 Prohibited Interests; Conflict of Interest 21.5. 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 9of13 S7296 -0001 \221300M. doc 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 § §1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 21.6. 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. 21.7. 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. 22.0 Attorneys' Fees If either party commences an action against the other party, either 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. 23.0 Exhibits 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. 24.0 Corporate Authority 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 10 of 13 57296- 0001\2213008v2.doc 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 By: (4il:lleer, Chief of Police Attest: M Approved 0 Steele, City Attorney CONSULTANT 11 of 13 57296 -0001 \2213008v2.doc Contingent Fee 15% - $2,000 EXHIBIT A NICHOLS CONSULTING -- SCOPE OF SERVICES AND COMPENSATION I. CONSULTANT'S RESPONSIBILITIES A. Consultant shall prepare all Law Enforcement and Local Government Employee Relations Claims whose State - imposed timely and late deadlines, for reimbursement, fall between the time of execution of this Contract and June 30, 2019. Consultant shall collect, document and process the information necessary for Consultant to file the claims on behalf of City. B. Consultant will provide City with a copy of Claims and supporting documentation prepared pursuant to this Contract. The copy will be provided following the state imposed deadline for said Claims. C. Consultant shall implement a Claims monitoring and documentation process in the course of Consultant's duties. D. Consultant agrees not to exceed the amount of the fee proposal set forth in Exhibit B without prior written authorization of City. E. Consultant will make good faith effort to file Claims in accordance with existing laws, regulations and applicable written guidelines but does not warrant the reimbursable nature or likelihood of success of reimbursement of any particular Claim. F. Consultant shall advise City of all official action which is necessary under applicable federal and state constitutional provisions, state statutes and regulations, and any other applicable provisions, in order that City may fulfill its responsibilities as set forth in Section II, paragraph C of this Exhibit. II. CITY'S RESPONSIBILITIES A. City will provide Consultant with all the documents, records and information necessary to prepare Claims in a timely manner. B. City agrees to pay Consultant, a contingent fee 15% of the claims paid with a Not -to- Exceed of $2,000 that were prepared by the Consultant in accordance with this Agreement including this Exhibit. The Contingent fee is due and payable within 30 days of receipt of payment from the State of California for the claims filed by the Consultant. C. City agrees to take that official action which is necessary under applicable federal and state constitutional provisions, state statutes and regulations, and any other applicable provisions, to perform its obligations under this Agreement in a timely manner. 12 of 13 S7296-0001 \2213008v2. doc Contingent Fee 15% - $2,000 EXHIBIT B PROPOSAL FOR CONTRACT FOR SERVICES This proposal for the City of Seal Beach is to provide the services set forth under EXHIBIT A of the Professional Services Agreement relating to the preparation of Claims for reimbursement pursuant to California Government Code Section 17550 et seq. Consultant's fee shall be a contingent fee of 15% of the claims paid by the State California with a Not -to- Exceed of $2,000 for claims prepared on behalf of the City by the Consultant for the period beginning with the time of execution of this Contract and ending on June 30, 2019. Consultant's fee is due and payable within 30 days of receipt of payment from the State of California. This Proposal is valid until September 30, 2018 unless extended in writing by Consultant. July 18, 2018 Nichols Consulting 185744 th Street Sacramento, CA 95819 S7296- 0001Q213008v2.doc President F. Andy Nichols 13 of 13