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HomeMy WebLinkAboutAGMT - Abacus Project Management City of Seal Beach • • AGREEMENT A.13- A•C U•S YNUItCI MANA4tlML'NI Page 2 of 6 AGREEMENT 1. Purpose. ABACUS shall be hired as an independent contractor to undertake a facility inspection of the following real property (the "Property "): Old Clty Hall 211 8"' Street, Seal Beach California 90740 ABACUS shall prepare and deliver to you one original written report of the results of the inspection. 2. Due Date of Report. ABACUS shall complete its inspection and issue a written final report within two weeks of receiving a Notice to Proceed. 3. Scope. ABACUS' inspection and report will be limited to an examination of the following listed systems or components (collectively the "System "): a. Construction Documents ( "as- builts" if available) b. Structural c. Mechanical d. Electrical e. Roof (a sampling of 10% of buildings) f. Fire Protection , g. Landscaping /Irrigation h. Parking Lot/Driveways/Covered Parking Interior Improvements j. Interior Units (a sampling of 10% of units) ABACUS will not inspect or comment on any other portion of the improvements on the Property. ABACUS will provide a Physical Audit Report in accordance with the requirements documented in our proposal dated March 19, 2001. ABACUS PROJECT MANAGEMENT, INC. City of Seal Beach • • AGREEMENT A B-A•C U•S YN(1JtlC 1 MANA4t MtlN1 Page 3 of 6 ABACUS' inspection of the systems will be limited to areas of the Systems readily visible. ABACUS shall not disassemble any part of the improvements on the Property. ABACUS shall not examine crawl spaces, the interior of walls, the areas above ceilings and below the exterior of roofs, the interior of HVAC units, electrical wiring or plumbing pipes. ABACUS shall not offer any opinion as to the nature, quality, or condition of the Systems to the extent the opinion would require an inspection of areas of portions of the Systems not readily visible or apparent. ABACUS' inspection and report shall not consider whether the Property and its use complies with applicable laws, statutes, case law, ordinances, regulations, zoning, building codes, land use restrictions such as conditions, covenants and restrictions, or any other legal matter (collectively "Laws "), including, but not limited to, environmental Laws of any kind. The opinions expressed in the report will be based upon the information known to ABACUS on the date of the report. ABACUS shall not be obligated to revise or supplement its report if any of the information or assumptions on which the report is based change after the date of the report. ABACUS shall not be obligated to advise you of any changes in information or assumptions that may be brought to the attention of ABACUS after the date of the report. The report will be prepared for your sole use and the report will be subject to the terms and conditions contained in this Agreement. No other person or entity other than you may rely on the report without the prior written consent of ABACUS. 4. Payment. Our fee for services provided hereunder shall be $ 3,000 plus $95 per hour for additional services requested by you that are outside the scope of our engagement. All amounts not paid within ten days of the due date shall accrue interest at the rate of ten percent per annum. 5. Warranties. ABACUS disclaims all warranties express or implied except for any warranties set forth in this Agreement. 6. Limitation of ABACUS' Liability. ABACUS shall not be liable to you for your lost profits or special or consequential damages as a result of a default under this Agreement or as a result of an erroneous report, even if ABACUS has been advised of the possibility of such damages. ABACUS' total liability under this agreement for damages, costs and expenses, regardless of cause, shall be limited to and shall not exceed the total amount of fees actually paid to ABACUS by you under this Agreement. Neither party may bring any daim against the other for any reason that is based on this Agreement unless the party making the claim notifies the other party of the specific nature and extent of the claim within six months of the date the report is delivered to you. ABACUS PROJECT MANAGEMENT, INC. City of Seal Beach • • AGREEMENT A B A C U S YNOJ6CI MANACEMENI Page 4 of 6 7. Term of Agreement. This Agreement commences on the date it is signed and shall continue until full performance by both parties, or until terminated by one party under the terms of this Agreement. Each party shall have the right to terminate this agreement by written notice to the other if a party has materially breached any obligation herein and such breach remains uncured for a period of thirty days after written notice of such breach is sent to the other party. 8. Mediation and Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order or preliminary injunction to preserve the status quo or prevent irreparable harm pending the selection and confirmation of an arbitrator(s) and for the right of ABACUS to bring suit on an open account for simple monies due ABACUS, any dispute arising under this Agreement shall be resolved through a mediation - arbitration approach. The parties agree to first try to resolve the dispute informally with the help of a mutually agreed -upon mediator. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit their dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration may be conducted by one impartial arbitrator by mutual agreement or by three arbitrators if the parties are unable to agree on a single arbitrator within thirty days of first demand for arbitration. All arbitrators are to be selected from a panel provided by the American Arbitration Association. Upon request of a party, the arbitrators shall have the authority to permit discovery to the extent they deem appropriate. A court reporter shall record the arbitration hearing and the reporter's transcript shall be the official transcript of the proceeding. The arbitrators shall have no power to add or detract from the agreements of the parties and may not make any ruling or award that does not conform to the terms and conditions of this Agreement. The arbitrators shall have the authority to grant injunctive relief in a form substantially similar to that which would otherwise be granted by a court of law. The arbitrators shall have no authority to award punitive damages or any other damages not measured by the prevailing party's actual damages. The arbitrators shall specify the basis for any damage award and the types of damages awarded. The decision of the arbitrators shall be final and binding on the parties and may be entered and enforced in any court of competent jurisdiction by either party. The prevailing party in the arbitration proceedings shall be awarded reasonable attomey fees, expert witness costs and expenses and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrators shall for good cause determine otherwise. 9. Complete Agreement. This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence. ABACUS PROJECT MANAGEMENT, INC. City of Seal Beach • • AGREEMENT A.B. A. C U•S PNOJNCI MANA4L'MtlNI Page 5 of 6 10. Modifications to Agreement. Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both parties. 11. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. 12. ABACUS an Independent Contractor. Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. The parties acknowledge that ABACUS will perform its obligations hereunder as an independent contractor. The manner and method of performing such obligations will be under ABACUS' sole control and discretion; your sole interest is in the result of such services. It is also expressly understood that ABACUS' employees and agents, if any, are not your employees or agents and have no authority to bind you by contract or otherwise. 13. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, or five days after being deposited in the United States mail, postage prepaid and addressed as follows, or to such other address as each party may designate in writing: City of Seal :Beach City of Seal Beach 211 5 Street Seal Beach, CA 90740 ABACUS. Abacus Project Management, Inc. 20201 S.W. Birch, Suite 240 Newport Beach, California 92660 14. Attorney Fees. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses, in addition to any other relief to which it may be entitled. 15. Applicable Law. This Agreement will be govemed by the laws of the State of Arizona. The proper venue for any proceeding at law or in equity or under the provisions for arbitration shall be Orange County, California, and the parties waive any right to object to the venue. ABACUS PROJECT MANAGEMENT, INC. City of Seal Beach AGREEMENT A•8- A•C-U• S PRO/ ECI MANA0GML'N'1 Page 6 of 6 16. Severability. If any provision of this Agreement is held invalid, void or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted and the balance of this Agreement shall be enforceable in accordance with its terms. R -sell Thompson / Gary M A#I Ast e Principal, Abacus Project Management, Inc. .3.30.0/ 3- 29- Date Date RT/Iw G:12001 CSCITY OF SEAL BEACMWGREEMENT ABACUS PROJECT MANAGEMENT, INC.