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HomeMy WebLinkAboutAGMT - Moffat & Nichol (SB Pier Structural Safety Assessment) • ft - - PROFESSIONAL SERVICES AGREEMENT FOR SEAL BEACH PIER STRUCTURAL SAFETY ASSESSMENT INSPECTION REPORT CIP NO. BP0904 between 1 � )E RPOR4' el e ,"., S90 •2% ' a CF R2: � ', � Jp ( JN . tl - City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 & Moffatt & Nichol 3780 Kilroy Airport Way, Suite 600 Long Beach, CA 90806 (562) 426 -9551 (562) 424 -7489 Fax ` This Professional Service Agreement ( "the Agreement ") is made as of October 13, 2008 (the "Effective Date "), by and between Moffatt & Nichol, Inc. ( "Consultant "), a California Corporation, and the City of Seal Beach ( "City "), a California charter city, (collectively, "the Parties "). • RECITALS A. City desires to perform a structural safety assessment inspection report for the Seal Beach Pier (the "Project "), which Project requires the engagement of a Professional Engineering firm. B. Pursuant to the authority provided by its City Charter and Government Code Section 37103, if applicable, City desires to engage Consultant to provide a safety assessment inspection report for the Seal Beach Pier in the manner set forth herein and more fully described in Section 1. C. Consultant represents that the principal members of Consultant firm are qualified professional engineering firm and are fully qualified to perform the Consultant services contemplated by this Agreement in a good and professional manner; and it desires to perform such services as provided herein. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: AGREEMENT 1. Consultant's Services. 1.1. Scope and Level of Services. Subject to the terms and conditions set forth in this Agreement, City hereby engages Consultant to perform the safety assessment inspection ( "Services ") set forth in Exhibit A, which is hereby incorporated by this reference. 1.2. Time for Performance. Consultant shall perform all services under this Agreement according to the project schedule set forth in Exhibit B. 1.3. 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. 1.4. Familiarity with Services. By executing this Agreement, Consultant represents that, to the extent required by the standard of practice, Consultant (a) has investigated and considered the scope of services to be performed, (b) has carefully considered how the services should be performed, and (c) 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 project and is reasonably acquainted with the requirements thereof. 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's risk until written instructions are received from the City Representative. 2of15 S7296- 0200 \1067636v4.doc • • 2. Term of Agreement. This Agreement is effective as of , 2008 (the "Effective Date "), and shall remain in full force and effect until Consultant has rendered the services required by this Agreement, unless sooner terminated as provided in Section 13 herein. 3. Compensation and Expense Reimbursement. 3.1. Compensation. City shall compensate Consultant in accordance with Exhibit C for the services provided pursuant to Section 1 of this Agreement. In no event shall the City pay Consultant more than the total sum of $68,000 unless additional services are provided pursuant to Section 3.2. City shall not withhold any federal, state or other taxes, or other deductions. 3.2. Additional Services. City shall not pay Consultant for additional services unless the City Representative authorizes, in advance, such services. City shall compensate Consultant for any authorized extra services at the hourly rates set forth in Exhibit B. 4. Representatives. 4.1. 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 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. 4.2. Consultant Representative. For the purposes of this Agreement, Michael J. McCarthy, P.E., is hereby designated as the principal and 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 Principal "). It is expressly understood that the experience, knowledge, capability, and reputation of the Responsible Principal were a substantial inducement for City to enter into this Agreement. Therefore, the Responsible Principal 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 Principal without the prior written approval of City, which approval shall not be unreasonably withheld. 5. Consultant's Personnel. 5.1. 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 Seal Beach business license as required by the Seal Beach Municipal Code. Consultant personnel shall be those designated on Exhibit D. 5.2. 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 6 below. 3 of 15 S7296- 0200 \1067636v4.doc • • • 5.3. 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. 5.4. 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 5. 6. Standard of Performance. Consultant shall perform all services to customary professional standards and in a manner reasonably satisfactory to City. 7. Status as Independent Contractor. 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 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 fi h to offset against the amount of any fees due to �T 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 7. 8. Confidentiality. 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. 9. Conflict of Interest. 9.1.1. 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, 4 of 15 S7296 -0200\1 067636v4.doc • • 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 § §1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 9.1.2. 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. 9.1.3. Consultant has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, 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. 10. Indemnification. 10.1. Indemnity for Design Professional Services. In connection with its design professional services, — Consultant shall defend — hold harmless and indemnify and elected officials, officers, employees, servants, designated volunteers, and those City agents serving as independent contractors in the role of city or agency officials (collectively, "Indemnitees "), with respect to any and all claims, demands, damages, liabilities, losses, costs or expenses (collectively, "Claims" hereinafter), 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 design 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 defend pursuant to this Section shall apply independent of any prior, concurrent or subsequent misconduct, negligent acts, errors or omissions of Indemnitees. Consultant shall defend Indemnitees in any action or actions filed in connection with any of said claims with counsel of Consultant's choice, subject to City's reasonable approval, and shall pay all costs and expenses, including all attorneys' fees actually incurred in connection with such defense, provided that in the event that any damages are determined by the court to have been caused in part by persons or entities other than Consultant, Consultant's obligation hereunder shall be in proportion to Consultant's share of fault. 5of15 S7296-0200\ I 067636v4.doc • 10.2. Other Indemnities. In connection with all Claims not covered by Section 10.1, Consultant shall defend, hold harmless and indemnify the Indemnitees 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 acts or omissions of Consultant or any of its officers, employees, subcontractors, or agents in the performance of this Agreement. Consultant shall defend Indemnitees in any action or actions filed in connection with any such Claims with counsel of Consultant's choice, subject to City's reasonable approval, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant's duty to defend pursuant to this Section shall apply independent of any prior, concurrent or subsequent misconduct, negligent acts, errors, or omissions of Indemnitees. 10.3. Acknowledgment of Indemnity Duties. By affixing his or her initials below, each party representative hereby acknowledges that the representative has read and accepted the provisions set forth in this Section 10. 69--Y e= // '- City Consultant Consultant 10.4. Nonwaiver of Rights. Indemnitees 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. 10.5. 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 Indemnitees, 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. 10.6. Survival. The provisions of this Section 10 shall survive the termination of the Agreement and are in addition to any other rights or remedies that Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against an Consultant shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. 11. Insurance. 11.1. 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. 6of15 S7296-0200\1 06763 6v4.doc • • 11.2. Minimum Scope of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. Professional Liability insurance. Consultant shall provide to City the standard form issued by the carrier. 11.3. Minimum Limits of Insurance. Consultant shall maintain limits no less than: 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. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Employer's Liability: $1,000,000 per accident_and_in_the aggregate for bodily injury or disease and Workers' Compensation Insurance in the amount required by law. Professional Liability: $1,000,000 per claim/aggregate. 11.4. Deductibles and Self- Insured Retentions. Consultant shall inform City of any deductibles or self - insured retentions except with respect to professional liability insurance. 11.5. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 11.5.1. 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. 7 of 15 57296 -0200\1 067636v4.doc . • 11.5.2. 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. 11.5.3. 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. 11.5.4. 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, or 10 days prior written notice by express overnight mail if cancellation is due to nonpayment of premiums. 11.5.5. 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. 11.6. 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. 11.7. Verification of Coverage. All insurance coverages shall be confirmed by execution of endorsements on forms approved by the City. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received- and- approved -by- City- before- services- commence: As an alternative to eity - - - - -- Consultant's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. 11.8. 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. 12. Cooperation. 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 that City might require. City shall compensate Consultant for any litigation support services in an amount to be mutually agreed upon by the parties. 13. Termination. 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. 8 of 15 S7296- 0200 \1067636v4.doc • 14. Suspension. 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. 15. Notices. 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, 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 8th Street Seal Beach, California 90740 Fax: (562) 493 -9857 With a copy to: Public Works Director City of Seal Beach 211 8th Street Seal Beach, California 90740 If to Consultant: Moffatt & Nichol 3780 Kilroy Airport Way Suite 750 — — - - - -- Long Beach, CA 90806 ATTN: Michael J. McCarthy 16. Non Discrimination and Equal Employment Opportunity. 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. 17. Non - Assignability; Subcontracting. 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. 9of15 S7296- 0200 \10676364.doc • • 18. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Consultant performs the Services. 19. Non - Waiver of Terms, Rights and Remedies. 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. 20. Attorneys' Fees. 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 attorneys' fees actually incurred in connection with such enforcement or interpretation. 21. Exhibits; Precedence. 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, including but not limited to the Consultant's Proposal dated August 28, 2008 and attached hereto as Exhibit A, the provisions of this Agreement shall prevail. 22. Construction. 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 Agreement - or - who - drafted of the Agreement. 23. Entire Agreement. 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. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. 10 of 15 57296- 0200 \1067636v4.doc • • CITY OF SEAL BEACH CONSULTANT By: t By: B A � ► David Carmany, City Manager Michael J. McCarthy, P.E. Vice Pres'de Attest: By: By: tie Ronald Heffron, P.E. L nda Devine, City Clerk Vice President Approved as to Form: (Two signatures required for corporations By under California Corporations Code § 313) Quinn Barrow, City Attorney S7296- 0200 \1067636v4.doc • • EXHIBIT A Consultant's Proposal Dated , 2008 (Including Scope of Services) • 12 S7296-0200\1067636v4.doc • • EXHIBIT B Project Schedule 13 57296-0200\l067636v4.doc • • EXHIBIT C Fee Schedule and Standard Billing Rates 14 57296-0200\I 067636v4.doc • • EXHIBIT D Consultant Personnel Project Manager: Elizabeth Greer, PE, SE Principal-hi-Charge: Ronald Heffron, PE QA/QC: James Crumpley, PE, SE Lead Engineer—Diver: Michael Breitenstein, PE Structural Analysis: Kijun Ahn, PE Cost Estimating: Mike O'Donnell Utilities: Julia Hornby, PE 15 S7296-0200\1067636v4.doc