HomeMy WebLinkAbout*AGMT - Bakall, Ergun -'p u,C.LcoC e f
lu /a3 /o 0
-eliff'41144; /Pta.A.144ILIA-1 -9 )444fibeL-1
PROFESSIONAL SERVICES AGREEMENT
between
City of Seal Beach
211 8 Street
Seal Beach CA 90740
(hereinafter "City")
Ergun Bakal!, P.E.
Consulting Civil Engineer
25270 Davis Drive
Tustin CA 92782
(hereinafter "Consultant ")
for
PROFESSIONAL SERVICES
On- CaII
Utility (Water & Sewer)
Engineering /Operations /Project Management Services
Contract No. 2000 -6
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into this ■2 — "- day „aye/dm/J..4 by and
betw5g? the n CITY OF SEAL BEACH (hereinafter called "City "), and
.CR ldtiJ A' P. E. , (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 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 through monthly invoices
according to the progress payments schedule established in the Schedule of Compensation.
1
•
• •
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:
1. 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 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 ($1,000,000) per
accident for bodily injury and disease. Such policies of insurance shall cover all persons who
provide services on behalf of Consultant.
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 ($1,000,000) 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:
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
3
• •
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.
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.
4
• •
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 commitment 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.
CITY 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 CITY 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.
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 CITY, 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
5
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:
Ergun Bakal!, P.E.
Consulting Civil Engineer
25270 Davis Drive
Tustin CA 92782
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
6
• •
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 all 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
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.
7
• •
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
noted by the Consultant which is not the result of his operations shall be immediately reported to
the City.
101.21 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
8
• •
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.
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.
9
• •
In recognition of the obligations stated in this Agreement, the parties have executed this
Agreement on the date indicated above.
CONSULT : CITY
i �ji By. �� � By: ��G'�
Name: 61P,C i9 M1..- Name: Donald F. McIntyre
Title: P- fits /Pfrt-- Title: Interim City Manager
Attes Approved as to form:
By: `' By:
Name. oanne M. Yeo Name:
Title: C; t- y Cl Prk Title:
10
• .
EXHIBIT A
SCOPE OF
WORK
11
II •
200 GENERAL REQUIREMENTS FOR THE SCOPE OF WORK
200.1 EXAMINATION OF RFP /RFQ DOCUMENTS: The Consultant shall be solely
responsible for examining the City's RFP /RFQ documents, including any addenda
issued, and for informing itself with respect to any and all conditions which may in any
way affect the amount or nature of the proposal, or the performance of the Services in
the event the Consultant is selected. No relief for error or omission will be given.
200.3 E MAIL: The Consultant shall supply and maintain individual Internet E — mail
addresses for each of the project managers and principals involved in the project and
other consultant personnel as the City deems necessary.
200.4 INVOICES: The Consultant shall submit not more than one invoice a month and
shall obtain a copy of the accounts payable schedule. The invoice will be in a format
that is acceptable to City Engineering Staff and shall detail individual personnel who
worked on the project, specific tasks performed, hours worked, billing rate, total costs,
and previous billing history, percentage of work completed, percentage of dollars spent.
The Consultant shall prepare invoices that show costs against each major milestone
task.
The Consultant shall notify the City when the cumulative compensation payable under
this Contract has reached 75% of the Contract not to exceed price. If at any time the
Consultant has reason to believe that the total cost to the Authority for the performance
of this. Contract will be greater or substantially less that the Contract not to exceed price,
the Consultant shall notify the Consultant in writing to that effect and give its revised
estimate of the total cost for the performance of this Contract. The notice shall state the
estimated amount of additional funds required to continue performance for the
remainder of the contract term. In no event is the Consultant authorized to exceed the
"not to exceed price" without prior written approval from the City.
200.5 COMPUTER FILES: The Consultant shall supply the City with a digital and
editable copy of all files that are included in the hard copy of the report. The Consultant
shall use or transfer into the following formats: Word Processing: Microsoft Word 97,
Spreadsheets: Excel 97, Databases: Filemaker Pro, Microsoft Access, GIS: ArcView,
Drawings: Autocad 14. All final plans shall be submitted also on CD readable by City
computers. If the Consultant wishes to use another program that would increase
productivity, the Consultant will provide the City a licensed copy or transfer into a format
that is acceptable to City Engineering Staff. All digital files shall be submitted on a "zip
disk."
The City shall have the right to use, duplicate, modify or disclose the technical data and
the information contained
200.6 KEY PERSONNEL: The Consultant shall not reassign any personnel mentioned
in the RFQ /Interview process unless under extraordinary circumstances. The
Consultant shall secure the prior written approval the City for any change or
12
• •
reassignment of the key personnel, submitting written documentation of the new
individual's qualification.
The Consultant's project manager shall supervise and direct the services, and have
overall responsibility for the services in accordance with the Consultant agreement and
Scope of Work. The Consultant shall be solely responsible for implementation of all
services, means, methods, techniques, sequences, and procedures and for
coordination of all portions of the services.
All workers shall have sufficient skill and experience to perform the work assigned to
them. The City shall have the right, in its absolute discretion to require the removal of
the Consultant's personnel at any level assigned to the performance of the Services at
no additional fee to the City, if the City considers such removal necessary and in its best
interest and request such removal in writing. Further, an employee who is dismissed for
any of the above reasons shall not be re- employed on this Contract.
200.7 UNAUTHORIZED WORK: Any services not required by the terms of the final
scope of work or proposal that are performed without written authority from the City, will
be considered as unauthorized and at the sole expense of the Consultant. Services so
performed will not be paid for, and no extension in the period of performance shall be
granted on account thereof.
200.8 AUDITS: The Consultant shall keep and maintain full and complete records and
books of account of its costs and expenses relating to the performance of the Services,
in accordance with generally accepted accounting practices. Such records and
accounts shall permit the Consultant to furnish the City, upon written notice, an accurate
written allocation of the costs to the various elements of the Services, as may be
required by the Authority. Upon reasonable advance written notice the City or its
representatives shall have the right to examine, any books, records, accounts, and
other documents of the Contractor directly pertaining to costs when such costs are the
basis of a claim or of reimbursement to the Consultant hereunder. The Consultant will
make reasonable efforts to assure that the any such representative is not a competitor
of the Contractor to which the disclosure of such cost information would have a
detrimental effect on the Consultant's business. The Consultant shall keep and preserve
all such books, records, accounts, and other documents for a period of at least three
years from after completion of the Services after Final Payment or if this Contract is
terminated in whole or in part after the final termination agreement.
200.9 CONSULTANT'S INTERACTION WITH, MEDIA AND THE PUBLIC: The
Consultant shall refer all inquiries from the news media to the City. If the Consultant
receives a complaint from a citizen or the community, the Consultant shall inform the
City what action was taken to alleviate the situation.
200.10 SUBCONTRACTORS /SUBCONSULTANT: The City reserves the right of prior
approval of all subcontractors and retains the right to request the Consultant to
13
• •
terminate any subcontractor, for any reason appropriate by the City, by so notifying the
Consultant in writing. Should said notification be submitted to the Consultant, it shall
terminate said subcontractor immediately.
The City shall have no liability to any subcontractor(s) for payment for services under
this Contract or other work performed for Contractor. Any subcontract entered into by
Consultant under the contract shall duly note that the responsibility for payment for the
technical services or any other services performed shall be the sole responsibility of the
Consultant.
200.11 DIRECT EXPENSES: It is expected that the Consultant has extensive
knowledge and experience performing this type of work. The Consultant shall prepare a
not to exceed budget for direct expenses and breakdown costs for services such as
copying, blue prints, computer time, reproduction, delivery, and any other foreseeable
expense not covered in the Consultant's hourly rates. Therefore, the Consultant shall
receive no additional compensation beyond that which is detailed in their budget. The
City will net pay for mileage charges.
200.12 INSURANCE: The Consultant shall obtain a minimum of $1,000,000 worth of
professional error and omissions insurance prior to entering into an agreement with the
City. The insurance requirement is non - negotiable.
200.13 RETENTION FOR CALTRANS: Not Used.
14