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HomeMy Public PortalAboutPSOMASCONSULTANT RETAINER AGREEMENT (Carson Housing Authority/ Psomas) THIS CONSULTANT RETAINER AGREEMENT is made as of April 3, 2012 (this "Agreement"), by and between the Carson Housing Authority, a body corporate and politic ("Authority"), and Psomas, a California Corporation ("Consultant"). RECITALS A. Authority has determined that it requires the certain professional services from a land survey/ civil engineering consultant to assist the Authority staff with certain services. B. Authority desires to retain Consultant as an independent contractor to provide such services on an as needed basis. C. Consultant represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees. NOW, THEREFORE, in consideration of performance by the parties of the promises, covenants, and conditions herein contained, the parties hereto agree as follows: 1. Consultant's Services. A. Scope and Level of Services. The nature, scope and level of the specific services to be performed by Consultant are as set forth in Exhibit A hereto and by this reference incorporated herein. Consultant shall provide such services on an as needed basis when given written instruction to do so by the Contract Administrator (as defined in Section 4 below). B. Time of Performance. The services shall be performed in a timely, regular basis in accordance with the written instruction of the Contract Administrator. Time is of the essence in the performance of this Agreement. C. Standard of Care. As a material inducement to Authority to enter into this Agreement, Consultant hereby represents and warrants that it has the experience necessary to undertake the services to be provided herein. D. Compliance with Law. All services rendered hereunder by Consultant shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of Authority and any federal, state or local governmental agency having jurisdiction in effect at the time service is rendered. 2. Term of Agreement. This Agreement is effective on the date set forth in the initial paragraph of this Agreement and shall remain in effect until June 30, 2014 unless earlier terminated pursuant to Section 14. 01018/0001/47598.01 3. Compensation. Authority agrees to compensate Consultant for its services according to the fee and payment schedule set forth in Exhibit A. In no event shall the total compensation and costs payable to Consultant under this Agreement exceed the Maximum Amount designated on Exhibit A hereto unless specifically approved in advance, in writing, by Authority. 4. Representatives. A. Project Manager. The Project Manager for the services required under this Agreement is hereby designated as Lee Whiteley, who is a representative of Consultant and authorized to act in its behalf with respect to the services specified herein. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Project Manager were a substantial inducement for Authority to enter into this Agreement. Therefore, the foregoing Project Manager 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. The foregoing Project Manager may not be changed by Consultant without the express written approval of Authority. B. Contract Administrator. The Contract Administrator and Authority's representative shall be the person designated as Economic Development General Manager of the City of Carson (the "City") or the Executive Director of the Authority, or in his or her absence, an individual designated in writing by the Economic Development General Manager or Executive Director. If no Contract Administrator is so designated, the Economic Development General Manager of the City shall be the Contract Administrator. It shall be Consultant's responsibility to assure that the Contract Administrator is kept informed of the progress of the performance of the services, and Consultant shall refer any decisions which must be made by Authority to the Contract Administrator. Unless otherwise specified herein, any approval of Authority required hereunder shall mean the approval of the Contract Administrator. 5. Standard of Performance. Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to Authority. Consultant hereby covenants that it shall follow the highest professional standards in performing all services required hereunder. 6. Ownership of Work Product. All reports, documents or other written material developed by Consultant in the performance of this Agreement shall be and remain the property of Authority without restriction or limitation upon its use or dissemination by Authority. 7. Status as Independent Contractor. Consultant is, and shall at all times remain as to Authority, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of Authority or otherwise act on behalf of Authority as an agent. Neither Authority 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 agents or employees are in any manner employees of Authority. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold Authority harmless from any and all taxes, assessments, penalties, and interest asserted against Authority by reason of the 2 01018/0001/47598.01 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 Authority harmless from any failure of Consultant to comply with applicable workers' compensation laws. Authority shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to Authority from Consultant as a result of Consultant's failure to promptly pay to Authority any reimbursement or indemnification arising under this section. 8. Confidentiality. Employees of Consultant, in the course of their duties, may have access to financial, accounting and statistical data provided by Authority. 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 written authorization by Authority. Authority shall grant such authorization if disclosure is required by law. Upon request, all Authority data shall be returned to Authority upon the termination of this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. 9. Conflict of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid representation of any matter for another person or entity which would come before the City or the Authority during such time as he is engaged by the Authority pursuant to this Agreement. Consultant agrees not to accept any employment or representation during the term of this Agreement which is likely to make Consultant "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decision made by Authority on any matter in connection with which Consultant has been retained pursuant to this Agreement. Nothing in this section shall, however, preclude Consultant from accepting other engagements with Authority or the City of Carson. 10. Warranty and Representation of Non -Collusion. No official, officer, or employee of the City or Authority has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of the City or Authority participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interest found to be "remote" or non interest" pursuant to California Government Code Sections 1091 and 1091.5. Consultant warrants and represents that (s)he/it has not paid or given, and will not pay or give, to any third party including, but not limited to, any Authority or City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded this Agreement. Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any Authority or City official, officer, or employee, as a result 3 01 x)18/0001 /47598.01 or consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in e payment of money, consideration, or other thing of value will render this Agreement void of o force or effect. Consultant: Initials 11. Indemnification. A. Consultant agrees to indemnify, hold harmless and defend Authority, the City of Carson ("City"), and their respective officers, employees, volunteers, and agents serving as independent contractors in the role of City or Authority officials (collectively, "Indemnitees"), from any claim, demand, damage, liability, loss, cost or expense, for any damage whatsoever, including but not limited to death or injury to any person and injury to any property, resulting from willful misconduct, negligent acts, errors or omissions of Consultant or any of its officers, employees, or agents. B. Authority does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by Authority, or the deposit with Authority, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless, indemnification and defense provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense. Consultant agrees that Consultant's covenant under this section shall survive the termination of this Agreement. 12. Insurance. A. Liability Insurance. Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by Consultant, his/her agents, representatives, employees or subcontractors. B. Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001) (2) Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). (3) Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. (4) Professional Liability Insurance. than: C. Minimum Limits of Insurance. Consultant shall maintain limits no less 4 01018/0001/47S98 OI (1) General Liability: $1,000,000 per occurrence 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. (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. (3) If applicable, Employer's Liability: $1,000,000 per accident for bodily injury or disease. (4) Professional Liability Insurance: $1,000,000 per claim and in the aggregate. D. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by Authority. At the option of Authority's Risk Manager, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to Authority, its officers, officials, employees and volunteers; or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. E. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: (1) Authority, its officers, officials, employees, agents and volunteers are to be covered as 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 special limitations on the scope of protection afforded to Authority, its officers, officials, employees, agent or volunteers. (2) For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects Authority, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by Authority, its officers, officials, employees, agents or volunteers shall be excess of Consultant's insurance and shall not contribute with it. (3) Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to Authority, its officers, officials, employees, agents or volunteers. 5 01018/0001/47598 01 (4) 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 insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after 30 days prior written notice by certified mail, return receipt requested, has been given to Authority. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A, unless waived by Authority's Risk Manager. G. Verification of Coverage. Consultant shall furnish Authority with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bond coverage on its behalf. The endorsements are to be on forms provided by Authority. All endorsements are to be received and approved by Authority before work commences. As an alternative to Authority forms, Consultant's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. H. 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. 13. Cooperation. In the event any claim or action is brought against Authority relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which Authority might require. 14. Termination. A. Authority shall have the right to terminate the services of Consultant at any time for any reason on seven (7) calendar days written notice to Consultant. In the event this Agreement is terminated by Authority, Consultant shall be paid for services satisfactorily rendered to the last working day this Agreement is in effect, and Consultant shall have no other claim against Authority by reason of such termination, including any claim for compensation. B. Consultant shall have the right to terminate this Agreement at any time for any reason on seven (7) calendar days written notice to Authority, and Consultant shall be paid for services satisfactorily rendered to the last working day this Agreement is in effect. 15. Suspension. Authority may, in writing, order Consultant to suspend all or any part of Consultant's services under this Agreement for the convenience of Authority or for work stoppages beyond the control of Authority or Consultant. Subject to the provisions of this Agreement relating to termination, a suspension of the services does not void this Agreement. 16. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during receiving party's 6 01018/(1001/47599.01 regular business hours or by facsimile before or during receiving party's regular business hours; or (b) on the second business day following deposit in the United States mail, postage prepaid, to the addresses heretofore below, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. Authority: Carson Housing Authority 1 Civic Plaza Dr., Ste. 500 Carson, CA 90745-2224 Attention: Clifford W. Graves Economic Development General Manager Fax: (310) 233-4804 Consultant: Psomas 3 Hutton Center Dr. Ste. 200 Santa Ana, CA 92707 Attention: Lee Whiteley, Project Manager Fax: (714) 545-8883 17. Nondiscrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, 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 employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. 18. Assignability; Subcontractor. Consultant shall not assign, transfer, or subcontract any interest in this Agreement or the performance of any of Consultant's obligations hereunder, without the prior written consent of Authority, and any attempt by Consultant to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be void and of no effect. 19. Compliance with Laws. Consultant shall comply with all applicable laws, ordinances, code and regulations of the federal, state, and local governments. Consultant shall obtain and maintain a valid City business license. 20. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 21. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or 7 0 10 19/000 1/47598.01 sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 22. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 23. Non -Waiver of Terms, Rights and Remedies. Waiver by either party to this Agreement shall not be a waiver of any other condition 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 Authority of any payment to Consultant constitute or be construed as a waiver by Authority 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 Authority shall in no way impair or prejudice any right or remedy available to Authority with regard to such breach or default. 24. Attorney's 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 reasonable attorney's fees. The venue for any litigation shall be Los Angeles County. 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 this Agreement or who drafted that portion of the Agreement. 25. 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 provision of any Exhibit or document incorporated herein by reference, the provisions of this Agreement shall prevail. 26. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Authority and Consultant. This Agreement supercedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision of breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. 8 01018/0001/47598.01 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CARSON HOUSING AUTHORITY Bv: % Chairman Jim Dear "Authority" ATTEST: By: Authority Sec tary Donesia L. Gause Approved as to form: ALESHIRE & WYNDER, LLP �ftuthottomey 01018/0001/47598.01 9 "Consultant" PSOMAS, a California C ation By: — Q Its Donald Lee Whiteley Vice President By. c Its R E. McLean Vice President EXHIBIT A Scone and Level of Service: At the direction of the Program Administrator, Consultant shall provide engineering services for the Authority. Consultant's on-call services primarily include surveying services and occasionally may include limited civil engineering services. Much of Psomas' work includes performing ALTA surveys for the Authority in connection with a potential property purchase. They also routinely Authority is selling or preparing to sell property. perform lot line adjustments when the Consultant shall provide written or oral reports to the Program Administrator on all assigned projects on a regular basis. In connection with performance of this Agreement, the Consultant's Project Manager shall be Lee Whiteley. The Authority's Contract Administrator shall be Clifford W. Graves, the Economic Development General Manager of the City of Carson. Com ensation: The Authority shall compensate Consultant on a per project basis pursuant to a written proposal for such project accepted to in writing by the Executive Director, Economic Development General Manager or other Authorized Officer (designated by the Executive Director or Economic Development General Manager) of the Authority. Consultant shall present an invoice to Authority itemizing the duties performed and the amount of time relating to each task. Authority shall compensate Consultant only upon presentation of such itemized invoice. Consultant shall be responsible for all expenses incurred by Consultant in connection with this Agreement unless otherwise agreed to in the proposal. Maximum Amount: $80,000 as approved by the Board of Directors of the Authority on April 3, 2012. 01019/0001/47598.01 Exhibit A