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HomeMy WebLinkAbout*AGMT - Newport Traffic Studies �p. Gd7�J2sw" / ag 99' d' ote Jr v0 6tiai►x SQL — PROFESSIONAL SERVICES AGREEMENT between • City of Seal Beach 211 8 Street Seal Beach CA 90740 (hereinafter `City") and k. Newport Traffic Studies PO BOX 306 Wrightwood CA 92397 ' (hereinafter "Consultant ") for PROFESSIONAL SERVICES CITY WIDE TRAFFIC VOLUME STUDY Contract No. 99005 • 1 • • PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, is made and entered into this pc a day of 4 ,• ffl' by and een CITY OF SEAL BEACH (hereinafter b. ed "City"), and -, z A (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 Statues 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 terms 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 Services" 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. 101.2 TIME OF PERFORMANCE. Consultant shall complete all services set forth in "Schedule ", Exhibit C, Schedule. The foregoing time schedule may be modified by the mutual written consent of the parties hereto. 101.3 COMPENSATION. The City will pay for the services of Consultant as indicated on the "Schedule of Compensation" which is set forth in Exhibit `B ". No payment for expenses or labor shall be paid by City unless it is related to a service which is referred to in the "Schedule of Compensation ". The total cost to the City shall not exceed the amount designated in Exhibit "B ", without the written approval and authorization of the City Council. 101.4 PAYMENT. The City will pay for services of the Consultant according to the progress • payments schedule established in the Schedule of Compensation. City's payment to Consultant 1 • 4 11 C . shall be made within thirty (30) days of the date of completion of each phase as set forth in the progress schedule. 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. - )01.9 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 their services. 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 2 • • 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. Scone and Limits of Coverage: At a minimum, the policies of insurance required hereunder shall meet the following specifications: 1. A policy or policies of Commercial General Liability insurance with minimum limits of one million dollars (S1,000,000) 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 (S1,000,000) 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 performance 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 (S1,000,000) per accident for bodily injury and disease. Such policies of insurance shall cover all persons who provide services on behalf of Consultant. [omit the remainder of this paragraph if the Consultant has employees]. As of the effective date of this Agreement, Consultant represents that it has no employees as defined by California law and on that basis is not required to comply with the Worker's Compensation insurance requirements of State law, nor to provide Employer's Liability Insurance. If at any time during the term of this Agreement Consultant employs any individual or individuals so as to become subject to the State of California's Worker's Compensation Insurance requirements, Consultant shall immediately procure Worker's Compensation Insurance as required by law, and Employer's Liability Insurance as specified herein, and maintain such insurance in full force and effect during the term of this Agreement. 4. A policy or policies of Errors and Omissions professional liability insurance appropriate to Consultant's 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 01,000,000) per occurrence. 101.10.2 Other Insurance Provisions: All such policies of insurance shall, where applicable, contain, or be endorsed to contain, the following provisions: 3 • t 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 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 • 4 • i . 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. 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. All coverages for subcontractors shall be subject to all of the requirements stated herein. 101.11 NOT USED 101.12 INDEMNIFICATION. CONSULTANT and CITY agree that City, its employees, agents and officials should, to the extent permitted by law, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys fees, litigation costs, defense costs, court costs 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 the City. CONSULTANT acknowledges that CITY would not have entered into this Agreement in the absence of the conunitment of CONSULTANT to indemnify and protect CITY as set forth here. A. To the full extent permitted by law, CONSULTANT shall defend, indemnify and hold harmless CITY, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged, or threatened, actual attorneys fees incurred by CITY, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation incurred in relation to, as a consequence of; arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part to the performance of this Agreement. All obligations under this provision are to be paid by CONSULTANT as they are incurred by the CITY. C1TY shall select counsel of its own choice to defend it in any action brought in connection with the Agreement. CONSULTANT shall pay all legal fees and costs incurred in connection with the City's defense. B. Without affecting the rights of CITY under any provision of this agreement or this section, CONSULTANT shall not be required to indemnify and hold harmless CITY as set forth above for liability attributable to the sole fault of CITY, provided such sole fault is determined by agreement between the parties or the findings of a court of competent jurisdiction. This exception will apply only in instances where the C1TY is shown to have been solely at fault and not in instances where CONSULTANT is solely or partially at fault or in instances where CITY's fault accounts for only a percentage of the liability involved. In those instances, the obligation of CONSULTANT will be all- inclusive and CITY will be indemnified for all liability incurred, even though a percentage of the liability is attributable to the conduct of the CITY. 5 1 • C. CONSULTANT acknowledges that its obligation pursuant to this section extends to liability attributable to CITY, if that liability is other than the sole fault of CITY. CONSULTANT has no obligation under this Agreement for liability proven in a court of competent jurisdiction or by written agreement between the parties to be the sole fault of CITY. D. The obligations of CONSULTANT under this or any other provision of this Agreement will not be limited by the provisions of any workers compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CTIY, its employees, agents and officials. 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 Consultant proportionately for work, provided such work is in a form useable to the City. Notice. Any notice required to be given to the Consulant shall be deemed duly and properly given upon mailing, postage prepaid, to: • • • 6 i • Newport Traffic Studies PO BOX 306 Wrightwood CA 92397 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 firms 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 performed 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 performed, shall not 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 WARRANTY. The Consultant warrants that sU Services shall be in accordance with this Contract and shall comply with the Standard of Performance for a period of one year from final acceptance of the Services. In the event of breach of this warranty, the Consultant shall take the necessary actions to correct the breach and the consequences thereof at the Consultant's sole 7 • r C expense, in the most expeditious manner as permitted by existing circumstances. If the Consultant does not promptly take steps to correct the breach upon notification thereof by the City, the City without waiving any other rights or remedies it may have at law or otherwise, may do or cause others to do so, and the Consultant shall promptly reimburse the City for all expenses and costs • incurred in connection therewith. 101.16 DATA AND SERVICES TO BE FURNISHED BY CITY, 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. 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 term 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 SAFETY REQUIREMENT, All work performed under this Agreement shall be performed in such a manner as to provide safety to the public and to meet or exceed the safety standards outlined by CAL -OSHA. The City reserves the right to issue restraint or cease and desist orders to the Consultant when unsafe or harmful acts are observed or reported relative to the performance of the work under this agreement. The Consultant shall maintain the work sites • free of hazards to persons and property resulting from its operations. Any hazardous condition 8 . • noted by the which is not the result of his operations shall be immediately reported to P Y P the City. )01.21 NUISANCE. Consultant shall not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement. 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. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by Consultant. Consultant further covenants that Consultant has not contracted with nor is the Consultant performing any services directly or indirectly, with any developer and/or property owners and/or firms, and/or partnerships owning property in the City, and further covenants and agrees that Consultant and/or its subcontractors shall provide no service or enter into any contact with the Developer and/or property owner and/or firms, and/or partnerships owning property in the City prior to the completion of this Agreement. 101.24 WAIVER, A waiver by the City of any breach of any term, 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, term, 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. 9 • • 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 terms of this Agreement shall be interpreted according to the laws of the State of California 10 • • In recognition of the obligations stated in this Agreement, the parties have executed this • Agreement on the date indicated above. CONSULTANT: CITY: ‘4, 44) By: N i Tao z SAID is By: Name: Name: Keith Till Title: Title: City Manager Attest: Approved as to form: By: . ..1111■ By: N : - OW _kt Name: Title: '�'!�!! �.1 , �- - lam- Title: • A 11