HomeMy WebLinkAbout*AGMT - Harris & Associates (Beachwalk 7 CFD Avalon) ,*. tLtoc. CJ tt\a.
• - -' ov /oq /o/
•
PROFESSIONAL SERVICES AGREEMENT
between
of
A 'Co v ct
..CbON1Y,o
City of Seal Beach
211 8 Street
Seal Beach CA 90740
(hereinafter "City ")
Harris & Associates
34 Executive Park
Suite 150
Irvine, CA 92614 -4705
(hereinafter "Consultant ")
for
PROFESSIONAL SERVICES
Financial Engineering Services
Beachwalk 7 Community Facilities District
• 5
Contract No. 2001 -
• •
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into this day of ( 2604 by and
between the CITY OF SEAL BEACH (hereinafter cal ed "City "), and �Iarris & Associates,
(hereinafter called "Consultant ").
RECITALS
WHEREAS, City is a municipal corporation duly organized and validly existing under the laws
of the State of California as a Charter City, with the power to carry on its business as it is now
being conducted under the Statutes of the State of California and the Charter of the City; and
WHEREAS, the City requires the services of a Consultant to provide the professional services as
described in the Scope of Services;
WHEREAS, the Consultant is able and willing to perform the required services under the terns
- and conditions of this Contract;
NOW, THEREFORE, the parties do mutually agree as follows:
SECTION 101
101.1 CONSULTANT SERVICES. Consultant, as an independent contractor, agrees to
perform during the term of this Agreement, each and every service set forth on the "Scope of
Work" of the "Financial Engineering Consulting Services for Avalon Homes Community
Facilities District, dated March 21, 2001" attached to this Agreement as Exhibit "A ". The
initiation of service by the Consultant will commence upon receipt of a written notice from the
Designated Official authorizing Consultant to proceed, and only to the extent of such
authorization. The services of the consultant shall include the making of all investigations,
studies, and analysis required by the conditions involved in.each request of the Designated
Official. Any such work that is additional to te h Scope of'Work shall be authorized by the
designated official and compensated at a mutually agreed upon fee.
i
101.2 TIME OF PERFORMANCE. Consultant shall complete all services set forth in
"Financial Engineering Consulting Services for Avalon Homes Community Facilities District,
dated March 21, 2001 ", Exhibit A of this agreement. The time schedule will be agreed upon by
the mutual written consent of the parties hereto and may be updated from time to time.
101.3 COMPENSATION. The City will pay for the services of Consultant as indicated on the
"Fee" and "Schedule of Hourly Rates" sections which is set forth in Exhibit "A ". No payment for
expenses or labor shall be paid by City unless it is related to a service which is referred to in
"Financial Engineering Consulting Services for Avalon Homes Community Facilities District,
1
• •
dated March 21, 2001 ". The total cost to the City shall not exceed the amount designated in
Exhibit "A ", without the written approval and authorization of the City Council.
101.4 PAYMENT. The City will pay for services of the Consultant through monthly invoices
according to the progress payments schedule established in the Schedule of Compensation.
City's payment to Consultant shall be made within thirty (30) days of the date the invoice was
received.
101.5 INDEPENDENT CONTRACTOR. Consultant and its subcontractor(s) shall act
hereunder as independent contractors, and shall have no power to incur any debt or obligation for
City. Neither City or any of its officers or employees shall have any control over the conduct of
Consultant, or any of Consultant's employees or subcontractor, except as herein set forth, and
Consultant expressly warrants no to, at any time or in any manner, represent that it, or any of its
agents, servants, subcontractors or employees, are in any manner agents, servants or employees
of City, it being distinctly understood that Consultant is and shall at all times remain to City a
wholly independent contractor and Consultant's obligations to City are solely such as are
prescribed by this Agreement.
101.6 ASSIGNMENT. This Agreement may not be assigned in whole or in part, without the
prior written consent of City.
101.7 DOCUMENT OWNERSHIP. Each and every report, draft, instrument of service, map,
record, and other document reproduced, prepared, or caused to be prepared by the Consultant
pursuant to or in connection with this Agreement shall be the exclusive property of the City. City
acknowledges and agrees that all reports, drafts, instruments of service, maps, records, and other
documents prepared by Consultant pursuant to this Agreement shall be used exclusively on this
project and shall not be used for any other work without the written consent of Consultant. In the
event City and Consultant consent permit the reuse or other use of the reports, drafts, instruments
of service, maps, records, and other documents, City shall require the party using them to
indemnify and hold harmless City and Consultant regarding such reuse or other use, and City
shall require the party using them to eliminate any and all references to Consultant from the
reports, drafts, instruments of service, maps, records, and other documents. This paragraph shall
not restrict the duties of the City under the public records act.
101.8 CITY LIASON. Consultant shall perform under the general supervision of the Director
of Public Works of City or his designee, and all communications, instructions and directions on
the part of the City shall be communicated exclusively through the Director of Public Works or
his designee.
101.9 PERSONNEL. Consultant represents that it has, or shall secure at its own expense, all
personnel required to perform Consultant's services under this Agreement. Consultant may
associate or employ associates or subcontractors in the performance of it services under this
agreement, but all times shall be responsible for the completion of their services.
2
• •
101.10 INSURANCE Consultant shall procure and maintain for the duration of this Agreement
the following policies of insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance of the work performed hereunder by
Consultant, its agents, representatives or employees. Such policies of insurance shall be placed
with insurers admitted to do business in California with a current A.M. Best's rating of A: VII or
better, unless an otherwise acceptable insurer is approved in writing, and in advance, by the City.
101.10.1. Scope and Limits of Coverage: At a minimum, the policies of insurance required
hereunder shall meet the following specifications:
I. A policy or policies of Commercial General Liability insurance with minimum limits of one
million dollars ($1,000,000) per occurrence for any injury, death, loss or damage as a result
of wrongful or negligent acts by Consultant, its officers, employees, agents, and independent
contractors in performance of services under this Agreement. Such coverage shall be at least
as broad as Insurance Services Office Commercial General Liability coverage (occurrence
form CG 0001). If Commercial General Liability Insurance or other form with a general
aggregate is used, either the general aggregate limit shall apply separately to the services
performed under this Agreement, or the general aggregate limit shall be twice the required
occurrence limit.
2. A policy or policies of Automobile Liability insurance with a minimum limit of one million
dollars ($1,000,000) per accident for bodily injury and property damage as a result of
wrongful or negligent acts by Consultant, its officers, employees, agents, and independent
contractors in perfonnance of services under this Agreement. Such coverage shall be at least
•
as broad as Insurance Services Office form number CA 0001 covering Automobile Liability,
code 1 (any auto).
3. Worker's Compensation insurance as required by the State of California, and Employer's
Liability Insurance with a minimum policy limit of one million dollars ($1,000,000) per
accident for bodily injury and disease.
4. A policy or policies of Errors and Omissions professional liability insurance appropriate to
Consultants profession and approved in writing and in advance by the City. Such policy or
policies of insurance shall carry a minimum limit of one million dollars ($1,000,000) per
claim.
101.10.2 Other Insurance Provisions: All such policies of insurance shall, where applicable,
contain, or be endorsed to contain, the following provisions (Sub -items 1 through 5 apply to
General Liability and Automotive Liability policies and sub -item 6 applies to General Liability,
Automotive Liability, and Worker's Compensation policies) :
1. The City, its officers, officials, employees, agents and volunteers shall be covered as insureds
with respect to 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; and automobiles owned, leased, hired, or borrowed by Consultant. The policy or
3
• •
policies of insurance shall contain no special limitations on the scope of protection afforded
to the City, its officers, officials, employees, agents or volunteers.
2. For any claims related to this Agreement, Consultant's insurance shall be primary insurance
with respect to the City, its officers, officials, employees, agents and volunteers. Any
insurance or self - insurance maintained by the City, its officers, officials, employees, agents
or volunteers shall be excess of Consultant's insurance and shall not contribute with
Consultant's coverage.
3.. Any failure to comply with reporting or other provisions of the policies including breaches of
warranties shall not affect coverage provided to the City, its officers, officials, 'employees,
agents or volunteers.
4. The 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.
5. Each policy of insurance required by this Agreement shall be endorsed to state that coverage
shall not be suspended, non - renewed, voided, canceled by either party, reduced in coverage
or in limits, or otherwise modified (except through the addition of additional insureds to the
policy) except after thirty (30) days written notice to the City by certified mail, return receipt
requested. Consultant agrees that it will not cancel, reduce or otherwise modify the insurance
coverage without having first obtained replacement insurance that complies with the
requirements of this Agreement.
6. The insurer shall waive all rights of _subrogation against the City, its officers, officials,
employees, agents, contractors, subcontractors and volunteers.
7. Consultant shall pay all insurance premiums when due, at Consultant's sole expense.
Consultant shall not be entitled to any reimbursement of insurance premiums as a
reimbursable expense under this Agreement.
101.10.3 Verification of Coverage Consultant shall submit to City (1) insurance certificates
indicating compliance with the minimum worker's compensation insurance requirements above,
and (2) original insurance policy endorsements indicating compliance with all other minimum
insurance requirements above, not less than one (1) day prior to beginning of performance under
this Agreement. Endorsements shall be executed on City's appropriate standard forms entitled
"Additional Insured Endorsement ", or a substantially similar form acceptable to the City
Attorney. Endorsements shall be signed by a person authorized by that insurer to bind coverage
on its behalf. Consultant's failure to comply with this requirement shall constitute a material
breach of this Agreement, for which City shall be entitled to seek all available legal remedies
including, without limitation, recision of this Agreement. The City shall not be required to
compensate Consultant for any services performed prior to the date certificates of insurance and
endorsements are presented to the City unless the City shall have first issued a written notice to
Consultant to proceed notwithstanding the requirements of this Agreement.
4 •
• •
101.10.4 Deductibles and Self Insured Retention Any deductibles or self - insured retention
must be declared to and approved by the City prior to the commencement of work hereunder. At
the sole option of the City, the insurer may be required to reduce or eliminate such deductibles or
self- insured retentions as respects the City, its officers, officials, employees, agents and
volunteers. Alternatively, the City may require Consultant to procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
101.10.4 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies, or shall furnish separate certificates and endorsements for each subcontractor. Al]
coverages for subcontractors shall be subject to all of the requirements stated herein.
101.11 NOT USED
101.12 INDEMNIFICATION.
Consultant shall indemnify, defend; and hold City officials and employees harmless from and .
against any and all actions, claims, demands, judgements, reasonable attorney fees, costs,
damage to persons or property, penalties, obligations, expenses or liabilities that may be asserted
or claimed by any person or entity arising out of negligent acts, errors, or omissions of the
consultant, its employees, agents, representatives, or subcontractors in the performance of any of
the tasks or services for and on behalf of the City, whether or not there is concurrent active or
passive negligence on the part of the City and/or City personnel; provided, however, that the
consultant shall not be required to indemnify, defend, or hold harmless the City or City personnel
against claims arising from the sole active negligence or willful misconduct of the City or City
personnel. In connection therewith:
A. Consultant shall defend, with Counsel acceptable to the City, any action or actions filed
in connection with any such claimed damage, injury, penalty, obligation or liability, and
shall pay all costs and expenses, including reasonable attorneys fees, incurred therewith.
B. In the event the City and /or City personnel is made a party to any action or proceeding
filed or prosecuted for any such claimed damage, injury, penalty, obligation, or liability,
the Consultant shall defend City and pay to City any and all costs and expenses incurred
by the City in such action or proceeding, together with reasonable attorney fees and
expert witness fees.
101.13 TERMINATION OF AGREEMENT. This Agreement may be terminated without
cause by City upon ten (10) days' written notice to the Consultant without further action by the
City. This Agreement may be terminated by the Consultant upon thirty (30) days' written notice
to the City. In the event the City terminates this Agreement as provided above, Consultant shall
terminate work at the earliest possible point, and complete all attendant reports and /or graphic
representations, conceptual plans, construction plan, or construction specifications. The City
shall compensate the Corisultant proportionately for work, provided such work is in a fonn
useable to the City.
Notice. Any notice required to be given to the Consultant shall be deemed duly and properly
given upon mailing, postage prepaid, to:
Harris & Associates
34 Executive Park
Suite 150
Irvine, CA 92614 -4705
or personally delivered to Consultant at such address or other address specified to the City in
writing by Consultant.
Any notice required to be given to the City shall be deemed duly and properly given upon
mailing, postage prepaid, to:
Attn: Director of Public Works
City of Seal Beach
211 Eighth Street
Seal Beach CA 90740
or personally delivered to City at such address or address specified to the Consultant in writing
by the City.
•
101.14 STANDARD OF PERFORMANCE. The Consultant shall perform and require its
Subcontractors to perform the Services in accordance with the requirements of this Agreement
and in accordance with professional standards of skill, care and diligence adhered to by fines
recognized for their expertise, experience and knowledge in performing services of a similar
nature. The Consultant shall be responsible for the professional quality, technical accuracy,
completeness, and coordination of the Services, it being understood that the City will be relying
upon such professional quality, accuracy, completeness, and coordination in utilizing the
Services. The foregoing obligations and standards shall constitute the "Standards of
Performance" for the purposes of this Contract.
The Consultant shall carefully study this Contract, shall verify all figures in these Contract
Documents before performing the Services; shall promptly notify the City of all errors,
inconsistencies, and /or omissions that it discovers; and, in instances where such non - conformities
are discovered, shall obtain specific instructions in writing from the City before Consultant's
proceeding with the Services. Any Services affected which are perfonned prior to the City's
decision shall be at the Consultant's risk. The Consultant shall not take advantage of any
apparent non - conformity that may be found in this Contract. The City shall be entitled to make
such corrections therein and interpretations thereof as it may deem necessary for the fulfillment
of the intent of this Contract. Omissions or misdescriptions of any Services that are manifestly
necessary to carry out the intent of this Contract, or that are customarily perfonned, shall not
•
6
• i
relieve the Consultant from performing such Services at no additional expense and /or delay, and
such Services shall be performed as if fully and correctly set forth in this Contract.
101.15 NOT USED.
101.16 DATA AND SERVICES TO BE FURNISEIED BY CONSULTANT. Consultant
shall deliver to the City the studies, plans, specifications, or other documents as are identified in
the Scope of Services; and Consultant shall upon completion of all work, submit to the City all
information developed in the course of the Consultant's services. Consultant shall, in such time
and in such form as the City may require, furnish reports concerning the status of services
required under this Agreement. Consultant shall, upon request by City and upon completion or
termination of this Agreement, deliver to the City all material furnished to Consultant by the
City. Consultant shall be allowed to keep copies of all deliverables.
101.17 CONFIDENTIALITY. Consultant shall not disclose, publish, or authorize others to
disclose or publish, design data, drawings, specifications, reports, or other information pertaining
to the projects assigned to consultant by the City or other information to which the consultant has
had access during the term of this agreement without the prior written approval of the designated
Official during the tern of this Agreement and for a period of two (2) years after the termination
of this agreement.
101.18 RECORDS. Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts, and other such information required by the City or the Designated
Official. The Consultant shall maintain adequate records on services provided in sufficient detail
to permit an evaluation of services. All such records shall be maintained in accordance with
generally accepted accounting principles and shall be clearly identified and readily accessible.
Consultant shall provide access to the Designated Official or his designees at all proper times to
such books and records, and gives the Designated Official or his designees the right to examine
and 'audit such books and records and to make transcripts as necessary, and to allow inspection of
all work, data, documents, proceedings, and activities related to this Agreement.
101.19 ASSIGNMENT. This agreement is personal to the Consultant and the Consultant's
Representative. Any attempt at assignment by the Consultant shall be void unless approved in
writing by the Designated Official. Consultant's services pursuant to this Agreement shall be
provided by the Consultant's Representative or directly under the supervision of the Consultant's
Representative and Consultant shall not assign another to supervise the Consultant's performance
of this Agreement without the prior written approval of the City, by and through the designated
Official.
101.20 NOT USED.
101.21 NOT USED.
7
•
101.22 PERMITS AND LICENSES. Consultant, at its sole expense, shall obtain and maintain
during the term of this Agreement, all appropriate permits, licenses, and certificates that may be
required in connection with the performance of services under this Agreement.
101.23 CONFLICT OF INTEREST. Consultant covenants that neither consultant, nor any
officer thereof, has any interest; nor shall they acquire any interest, directly or indirectly which
will conflict with in any manner or degree with the performance of the Consultant services under
this Agreement.
101.24 WAIVER. A waiver by the City of any breach of any tern, covenant, or condition
contained in this Agreement shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant, or condition contained in this Agreement whether of the same
or different character.
101.25 COST OF LITIGATION. If any legal action is necessary to enforce any provision of
this Agreement or for damages by reason of any alleged breach of any provisions of this
Agreement, the prevailing party shall be entitled to receive from the losing party all costs and
expenses in such amount as the court may determine to be reasonable. In awarding the cost of
litigation, the court shall not be bound by any court fee schedule, but shall, if it is in the interest
of justice to do so, award the full amount of costs, expenses, and attorneys' fees paid or incurred
in good faith.
101.26 SEVERABILITY. If any part, tern, or provision of this Agreement shall be held
illegal, unenforceable, or in conflict with any law of a federal, state, or local government having
jurisdiction over this Agreement, the validity of the reminding portions or provisions shall not be
affected by such holding.
101.27 INTEGRATED CONTRACT. This Agreement represents the entire Agreement
between the City and the Consultant and all preliminary negotiations and agreements are deemed
a part of this Agreement. No verbal agreement or implied covenant shall be held to vary the
provisions of this Agreement. This Agreement shall bind and inure to the benefit of the parties to
this Agreement and any subsequent successors and assigns.
In the event of any inconsistency between the provisions of this Agreement and any attached
Consultant's proposal, the provisions of this agreement shall control.
101.28 CHOICE OF LAW . The teens of this Agreement shall be interpreted according to the
laws of the State of California.
8
•
• •
In recognition of the obligations stated in this Agreement, the parties have executed this
Agreement on the date indicated above.
CONSULTANT:
By: By: /
Name: ,70 ;44...) L . e'cz< Name d ohn Bahorski
Title: AS'Soc,.4 Title: City Manager
BW/t. 4111
Attee
NI, Joanne M. Yeo
Title: City Clerk
•
9