HomeMy WebLinkAbout0010_2_Webb - Exhibit A Agreement1
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement for Professional Services (the “Agreement”) is made and entered into as
of the 14Tth day of February, 2017, by and between the City of Lake Elsinore, a municipal
corporation (''City") and Albert A. Webb Associates ("Consultant").
RECITALS
A.City desires to retain Consultant to perform engineering services in the City and
Consultant desires to provide such professional services and related work as set forth in this
Agreement.
B.Consultant possesses the skill, experience, ability, background, certification and
knowledge to perform the services described in this Agreement on the terms and conditions
described herein.
AGREEMENT
1.Scope of Services. Consultant shall perform the services described on Exhibit A,
which is attached hereto and incorporated herein by reference. Consultant shall provide said
services at the time, place, and in the manner specified in Exhibit A, subject to the direction of the
City through its staff that it may provide from time to time.
2.Time of Performance. The services of Consultant are to commence upon
execution of this Agreement and shall continue [until completed in accordance with the schedule
set forth in the Scope of Work (Exhibit A) or for a period of one year. Professional services as
described in Exhibit A may be extended at the discretion of the City on an annual basis for a total
of three (3) years.
3.Compensation. Compensation to be paid to Consultant shall be in accordance
with the charges set forth in Exhibit A, which is attached hereto and incorporated herein by
reference. In no event shall Consultant's compensation exceed $72,556.00 without additional
written authorization from the City. Payment by City under this Agreement shall not be deemed a
waiver of defects, even if such defects were known to the City at the time of payment.
4.Method of Payment. Consultant shall submit monthly billings to City describing the
work performed during the preceding month. Consultant’s bills shall be segregated by project
task, if applicable, such that the City receives a separate accounting for work done on each
individual task for which Consultant provides services. Consultant’s bills shall include a brief
description of the services performed, the date the services were performed, the number of hours
spent and by whom, and a description of any reimbursable expenditures. City shall pay
Consultant no later than 30 days after approval of the monthly invoice by City staff. When
payments made by City equal 90% of the maximum fee provided for in this Agreement, no further
payments shall be made until the final work under this Agreement has been accepted by City.
5.Extra Work. At any time during the term of this Agreement, City may request that
Consultant perform Extra Work. As used herein, "Extra Work" means any work, which is
determined by City to be necessary for the proper completion of the Project, but which the parties
did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant
shall not perform, nor be compensated for, Extra Work without written authorization from City.
Extra work will be invoiced separately from services performed in accordance with the Scope of
Services.
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6.Termination. This Agreement may be terminated by the City immediately for cause
or by either party without cause upon thirty (30) days' written notice of termination. Upon
termination, Consultant shall be entitled to compensation for services performed up to the
effective date of termination.
7.Ownership of Documents. All plans, studies, documents and other writings
prepared by and for Consultant, its officers, employees and agents and subcontractors in the
course of implementing this Agreement, except working notepad internal documents, shall
become the property of the City upon payment to Consultant for such work, and the City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports,
plans, studies, documents and other writings to City upon written request. City acknowledges that
any use of such materials in a manner beyond the intended purpose as set forth herein shall be
at the sole risk of the City. City further agrees to defend, indemnify and hold harmless Consultant,
its officers, officials, agents, employees and volunteers from any claims, demands, actions,
losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses
in connection therein), arising out of the City’s use of such materials in a manner beyond the
intended purpose as set forth herein.
a.Licensing of Intellectual Property. This Agreement creates a nonexclusive
and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights,
designs, and other intellectual property embodied in plans, specifications, studies, drawings,
estimates, and other documents or works of authorship fixed in any tangible medium of
expression, including but not limited to, physical drawings or data magnetically or otherwise
recorded on computer diskettes, which are prepared or caused to be prepared by Consultant
under this Agreement ("Documents & Data") except for Consultant’s WebbSTAR proprietary
software. Consultant shall require that all subcontractors agree in writing that City is granted a
nonexclusive and perpetual license for any Documents & Data the subcontractor prepares under
this Agreement. Consultant represents and warrants that Consultant has the legal right to license
any and all Documents & Data. Consultant makes no such representation and warranty in regard
to Documents & Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be limited in any way in its use of the Documents
& Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
b.Confidentiality. All ideas, memoranda, specifications, plans, procedures,
drawings, descriptions, computer program data, input record data, written information, and other
Documents & Data either created by or provided to Consultant in connection with the performance
of this Agreement shall be held confidential by Consultant. Such materials shall not, without the
prior written consent of City, be used by Consultant for any purposes other than the performance
of the services under this Agreement. Nor shall such materials be disclosed to any person or
entity not connected with the performance of the services under this Agreement. Nothing
furnished to Consultant, which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City's name or insignia, photographs relating to project for which Consultant's services are
rendered, or any publicity pertaining to the Consultant's services under this Agreement in any
magazine, trade paper, newspaper, television or radio production or other similar medium without
the prior written consent of City.
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8.Consultant's Books and Records.
a.Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
services, or expenditures and disbursements charged to City for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to Consultant to
this Agreement.
b.Consultant shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years, or for any longer
period required by law, from the date of termination or completion of this Agreement.
c.Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular business
hours, upon written request by the City Manager, City Attorney, City Auditor or a designated
representative of these officers. Copies of such documents shall be provided to the City for
inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually
agreed upon, the records shall be available at Consultant's address indicated for receipt of notices
in this Agreement.
d.Where City has reason to believe that such records or documents may be
lost or discarded due to dissolution, disbandment or termination of Consultant's business, City
may, by written request by any of the above-named officers, require that custody of the records
be given to the City and that the records and documents be maintained in City Hall. Access to
such records and documents shall be granted to any party authorized by Consultant, Consultant's
representatives, or Consultant's successor-in-interest.
9.Independent Contractor. It is understood that Consultant, in the performance of
the work and services agreed to be performed, shall act as and be an independent contractor and
shall not act as an agent or employee of the City. Consultant shall obtain no rights to retirement
benefits or other benefits, which accrue, to City's employees, and Consultant hereby expressly
waives any claim it may have to any such rights.
10.Interests of Consultant. Consultant (including principals, associates and
professional employees) covenants and represents that it does not now have any investment or
interest in real property and shall not acquire any interest, direct or indirect, in the area covered
by this Agreement or any other source of income, interest in real property or investment which
would be affected in any manner or degree by the performance of Consultant's services
hereunder. Consultant further covenants and represents that in the performance of its duties
hereunder no person having any such interest shall perform any services under this Agreement.
Consultant is not a designated employee within the meaning of the Political Reform Act because
Consultant:
a. will conduct research and arrive at conclusions with respect to his/her rendition of
information, advice, recommendation or counsel independent of the control and direction of
the City or of any City official, other than normal agreement monitoring; and
b. possesses no authority with respect to any City decision beyond rendition of information,
advice, recommendation or counsel. (FPPC Reg. 18700(a) (2).)
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11.Professional Ability of Consultant. City has relied upon the professional training
and ability of Consultant to perform the services hereunder as a material inducement to enter into
this Agreement. Consultant shall therefore provide properly skilled professional and technical
personnel to perform all services under this Agreement. All work performed by Consultant under
this Agreement shall be in accordance with applicable legal requirements and shall meet the
standard of quality ordinarily to be expected of competent professionals in Consultant's field of
expertise.
12.Compliance with Laws. Consultant shall use the standard of care in its profession
to comply with all applicable federal, state and local laws, codes, ordinances and regulations.
13.Licenses. Consultant represents and warrants to City that it has the licenses,
permits, qualifications, insurance and approvals of whatsoever nature which are legally required
of Consultant to practice its profession. Consultant represents and warrants to City that
Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term
of this Agreement, any licenses, permits, insurance and approvals which are legally required of
Consultant to practice its profession. Consultant shall maintain a City of Lake Elsinore business
license.
14.Indemnity. Consultant agrees to defend, indemnify and hold harmless the City, its
officers, officials, agents, employees and volunteers from and against any and all claims,
demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all
costs and expenses in connection therein), to the extent arising out of the negligent performance
of this Agreement or its failure to comply with any of its obligations contained in this Agreement,
except for any such claim arising out of the sole negligence or willful misconduct of the City, its
officers, agents, employees or volunteers.
15.Insurance Requirements.
a.Insurance. Consultant, at Consultant's own cost and expense, shall
procure and maintain, for the duration of the contract, the following insurance policies.
i.Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for his/her
employees in accordance with the laws of the State of California. In addition, Consultant
shall require each subcontractor to similarly maintain Workers’ Compensation Insurance
and Employer's Liability Insurance in accordance with the laws of the State of California
for all of the subcontractor's employees. Any notice of cancellation or non-renewal of all
Workers' Compensation policies must be received by the City at least thirty (30) days prior
to such change. The insurer shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising from work performed by
Consultant for City. In the event that Consultant is exempt from Worker’s Compensation
Insurance and Employer’s Liability Insurance for his/her employees in accordance with
the laws of the State of California, Consultant shall complete and submit to the City a
Certificate of Exemption from Workers Compensation Insurance in the form attached
hereto as Exhibit C.
ii.General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury and property damage. If a commercial general
liability insurance form or other form with a general aggregate limit is used, either the
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general aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
iii.Automobile Liability Coverage. Consultant shall maintain
automobile liability insurance covering bodily injury and property damage for all activities
of the Consultant arising out of or in connection with the work to be performed under this
Agreement, including coverage for owned, hired and non-owned vehicles, in an amount
of not less than one million dollars ($1,000,000) combined single limit for each occurrence.
iv.Professional Liability Coverage. Consultant shall maintain
professional errors and omissions liability insurance for protection against claims alleging
negligent acts, errors or omissions which may arise from Consultant's operations under
this Agreement, whether such operations by the Consultant or by its employees,
subcontractors, or sub consultants. The amount of this insurance shall not be less than
one million dollars ($1,000,000) on a claims-made annual aggregate basis, or a combined
single limit per occurrence basis.
b.Endorsements. Each general liability and automobile liability insurance policy shall be
with insurers possessing a Best’s rating of no less than A:VII and shall be endorsed with the
following specific language:
i.The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insured with respect to liability arising out of
work performed by or on behalf of the Consultant, including materials, parts or equipment
furnished in connection with such work or operations.
ii.This policy shall be considered primary insurance as respects the City, its
elected or appointed officers, officials, employees, agents and volunteers. Any
insurance maintained by the City, including any self-insured retention the City may have,
shall be considered excess insurance only and shall not contribute with it.
iii.This insurance shall act for each insured and additional insured as though
a separate policy had been written for each, except with respect to the limits of liability of
the insuring company.
iv.The insurer waives all rights of subrogation against the City, its elected or
appointed officers, officials, employees or agents.
v.Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its elected or appointed officers, officials, employees,
agents or volunteers.
vi.The insurance provided by this Policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits except after thirty (30) days written notice
has been received by the City.
c.Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City. At the City's option, Consultant shall
demonstrate financial capability for payment of such deductibles or self-insured retentions.
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d.Certificates of Insurance. Consultant shall provide certificates of insurance
with original endorsements to City as evidence of the insurance coverage required herein.
Certificates of such insurance shall be filed with the City on or before commencement of
performance of this Agreement. Current certification of insurance shall be kept on file with the City
at all times during the term of this Agreement.
16.Notices. Any notice required to be given under this Agreement shall be in writing
and either served personally or sent prepaid, first class mail. Any such notice shall be addressed
to the other party at the address set forth below. Notice shall be deemed communicated within 48
hours from the time of mailing if mailed as provided in this section.
If to City:City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92530
If to Consultant:Albert A Webb Associates
Dilesh R. Sheth, PE/TE - VP
3788 McCray Street
Riverside, California 92506
17.Entire Agreement. This Agreement constitutes the complete and exclusive
statement of Agreement between the City and Consultant. All prior written and oral
communications, including correspondence, drafts, memoranda, and representations, are
superseded in total by this Agreement.
18.Amendments. This Agreement may be modified or amended only by a written
document executed by both Consultant and City and approved as to form by the City Attorney.
19.Assignment and Subcontracting. The parties recognize that a substantial
inducement to City for entering into this Agreement is the professional reputation, experience and
competence of Consultant and the subcontractors listed in Exhibit D. Consultant shall be fully
responsible to City for all acts or omissions of any subcontractors. Assignments of any or all
rights, duties or obligations of the Consultant under this Agreement will be permitted only with the
express consent of the City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement except as provided in Exhibit D without the written authorization
of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for
all acts or omissions of those subcontractors. Nothing in this Agreement shall create any
contractual relationship between City and any subcontractor nor shall it create any obligation on
the part of the City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise is required by law.
20.Waiver. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver of a subsequent breach of the same or any other provision under this
Agreement.
21.Severability. If any term or portion of this Agreement is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
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22.Controlling Law Venue. This Agreement and all matters relating to it shall be
governed by the laws of the State of California and any action brought relating to this Agreement
shall be held exclusively in a state court in the County of Riverside.
23.Litigation Expenses and Attorneys' Fees. If either party to this Agreement
commences any legal action against the other party arising out of this Agreement, the prevailing
party shall be entitled to recover its reasonable litigation expenses, including court costs, expert
witness fees, discovery expenses, and attorneys' fees.
24.Mediation. The parties agree to make a good faith attempt to resolve any disputes
arising out of this Agreement through mediation prior to commencing litigation. The parties shall
mutually agree upon the mediator and share the costs of mediation equally. If the parties are
unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS")
or its successor in interest. JAMS shall provide the parties with the names of five qualified
mediators. Each party shall have the option to strike two of the five mediators selected by JAMS
and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved
after mediation, either party may commence litigation.
25.Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
26.Authority to Enter Agreement. Consultant has all requisite power and authority to
conduct its business and to execute, deliver, and perform the Agreement. Each party warrants
that the individuals who have signed this Agreement have the legal power, right, and authority to
make this Agreement and to bind each respective party.
27.Prohibited Interests. Consultant maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for
Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid
nor has it agreed to pay any company or person, other than a bona fide employee working solely
for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or violation
of this warranty, City shall have the right to rescind this Agreement without liability. For the term
of this Agreement, no member, officer or employee of City, during the term of his or her service
with City, shall have any direct interest in this Agreement, or obtain any present or anticipated
material benefit arising therefrom.
28.Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex
or age. Such non-discrimination shall include, but not be limited to, all activities related to initial
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination. Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in
effect or hereinafter enacted.
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IN WITNESS WHEREOF the parties have caused this Agreement to be executed on the date
first written above.
CITY OF LAKE ELSINORE: CONSULTANT:
By:By:
Grant Yates, City Manager Dilesh Sheth, PE/TE
Vice President
APPROVED AS TO FORM:
Barbara Leibold, City Attorney
ATTEST:
Susan M. Domen, City Clerk, MMC
Attachments:
Exhibit A - Scope of Services – Consultant Proposal
EXHIBIT "A"
SCOPE OF SERVICES
Consultant Proposal