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CC - Item 7G - Consideration of Consulting Agreement with Cityworks, Inc. For Planning ServicesROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: JEFF ACCRED, CITY MANAGER DATE: OCTOBER 25, 2011 SUBJECT: CONSIDERATION OF CONSULTING AGREEMENT WITH CITYWORKS, INC FOR PLANNING SERVICES SUMMARY This item is before the Council for consideration of a consulting agreement with CityWorks, Inc., to provide the City needed assistance with planning projects. Recommendation: Staff recommends that the City Council approve the agreement with City Works, Inc., subject to finalization of insurance and indemnification language by the City Manager and City Attorney with CityWorks, Inc. (Attachment A). BACKGROUND /ANALYSIS The City needs consulting services for assistance on various current and potential residential and commercial projects and to assist the City in reviewing its planning and entitlement processes to make them more user friendly to residents, businesses and potential developers. Currently, the City does not have the staff available to provide this expertise. Staff is recommending that the City utilize the services of CityWorks Inc., located in Pasadena. CityWorks Inc. is well qualified and able to provide the services required by the City. FINANCIAL IMPACT The contract amount may not exceed $75,000. This money is available in the City's General Fund. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Prepared by: Matthew E. Hawkesworth Assistant City Manager IM 101®. AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF ROSEMEAD, CALIFORNIA AND CITY WORKS, LLC This Agreement for Professional Services ( "Agreement ") is'entered into as of this day of October, 2011 by and between the City of Rosemead, a municipal corporation ( "City ") and City Works, a Limited Liability Company ( "Consultant'). City and Consultant are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." RECITALS A. The City does not have the personnel able or available to perform the services required under this Agreement. B. The City desires to contract out for consulting services for certain projects relating to Planning Services. B. Consultant warrants to the City that it has the qualifications, experience and ability to properly perform the services under this Agreement C. Pursuant to the City of Rosemead's Municipal Code, City has authority to enter into this Professional Services Agreement and the City Manager has authority to execute this Agreement. D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terns of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made bythe Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows: SECTION 1. TERM OF AGREEMENT. Subject to the termination provisions -in Section 18 of this Agreement, the term of this Agreement is from October 25, 2011 to June 30, 2012. Consultant shall complete all services for the City set forth in Section 2 within the tern of this Agreement, and shall meet any other City established schedules and deadlines as stated herein. LA 04852 -3368 -9356 0 SECTION 2. SCOPE OF SERVICES. Consultant agrees to perform the services as described in this Section. Consultant shall provide planning and entitlement advice for attracting and processing desirable residential and commercial development projects in the City, including but not limited to potential development of the Barr Lumber Site, potential mixed use projects and the Glendon Hotel project. Consultant shall advise the City on revisions to the Municipal Code and City practices and polices to update and streamline the City's planning and entitlement procedures to make them ore user friendly for residents, businesses and developers. SECTION 3. ADDITIONAL SERVICES. Consultant shall not be compensated for any services rendered in connection with its perfonnance of this Agreement which are in addition to or outside of those set forth in this Agreement described in the Scope of Services, unless such additional services are authorized in advance and in writing by the City Council or City Manager. Consultant shall be compensated for any such additional services in the amounts and in the manner agreed to by the City Council or City Manager. SECTION 4. COMPENSATION AND METHOD OF PAYMENT. (a) Subject to any limitations set forth in this Agreement, City agrees to pay Consultant one hundred seventeen dollars ($117) per hour. Under no circumstance shall the Consultant be permitted to work more than 75 hours per month. The total compensation under this contract, shall not exceed Seventy Five Thousand dollars ($75,000), unless additional compensation is approved in writing by the City Council or City Manager. (b) Each month Consultant shall furnish to the City Manager an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor, travel, materials and supplies. The City Manager shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. (c) Except as to any charges for work or expenses incurred by Consultant which are disputed by City, City will use its best efforts to cause Consultant to be paid within forty -five (45) days of receipt of Consultant's,correct and undisputed invoice. (d) Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. LA #4852- 3368 -9356 v I 2 SECTION 5. OWNERSHIP OF DOCUMENTS. All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Consultant in the course of providing any services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the pennission of the Consultant. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer tiles, tiles and other documents. SECTION 6. CONSULTANT'S BOOKS AND RECORDS. Consultant shall maintain any and all documents and records demonstrating or relating to Consultant's performance of services pursuant to this Agreement. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Consultant pursuant to this Agreement. SECTION 7. STATUS OF CONSULTANT. (a) Consultant is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Consultant shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the services under this Agreement on* behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant's officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Consultant, nor any of Consultant's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may have to any such rights. SECTION S. STANDARD OF PERFORMANCE. Consultant represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the services required under this Agreement in a thorough, competent and professional manner. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. In meeting its LA #4852 -3368 -9356 v I 3 I obligations under this Agreement, Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to those required of Consultant under this Agreement.. SECTION 9. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES. Consultant shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the tern of this Agreement. Consultant shall obtain any and all licenses, permits and authorizations necessary to perform the services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Consultant to comply with this section. SECTION 10. PREVAILING WAGE LAWS It is the understanding of City and Consultant that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work perfonned on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, "construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work. SECTION 11. NONDISCRIMINATION. Consultant shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement. SECTION 12. UNAUTHORIZED ALIENS. Consultant hereby promises and agrees to comply with all of the provisions of the Federal Irrnnigration and Nationality Act, 8 U.S.C.A. §§ 1101, et sec., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the perfonnance of work and /or services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City LA t14852 -3368 -9356 vl 11 SECTION 13. CONFLICTS OF INTEREST. (a) Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the perfonnance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City understands and acknowledges that Consultant is, as of the date of execution of this Agreement, independently involved in the perfonnance of non - related services for other governmental agencies and private parties. Consultant is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Consultant will, perform non - related services for other governmental agencies and private parties following the completion of the scope of work under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work, product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law. SECTION 15. MUTUAL INDEMNIFICATION To the fullest extent permitted by law, the Parties agree to save, indemnify, defend and hold harmless each other from any and all liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness (fees), where the same arise out of, or are in any way attributable in whole or in part, to the performance of this Agreement and attributable to the fault of the other. Following a determination of percentage of fault and or liability by agreement between the Parties or a court of competent jurisdiction, the party responsible for liability to the other will indemnify the other party to this Contract for the percentage of liability determined as set forth herein. LA H4852 -3368 -9356 0 5 SECTION 16. INSURANCE. Consultant agrees to obtain and maintain in full force and effect during the tern of this Agreement the insurance policies set forth below. Consultant agrees to provide City with copies of required policies upon request. (a) Workers Compensation Insurance as required by law. (b) Comprehensive general and automobile liability insurance protecting the Consultant in amounts not less than $1,000,000 for personal injury to an one person, $1,000,000 for injuries arising out of one occurrence, and $500,000 for property damages or a combined single limit of $1,000,000. Each such policy of insurance shall: I ) Be issues by a financially responsible insurance company or companies admitted and authorized to do business in the State of California or which is approved in writing by City. 2) Names and list as additional insured the City, its officers and employees. 3) Specify its acts as primary insurance 4) Contain the clause substantially in the following words: "It is hereby understood and agreed that this policy shall not be cancelled except upon thirty (30) days prior written notice to the City of such cancellation. 5) Cover the operation of the Consultant pursuant to the terms of this Agreement. SECTION 17. CONTINUITY OF PERSONNEL. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. SECTION 18. TERMINATION OF AGREEMENT. (a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination'to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress. (b) Consultant may terminate this'Agreement for cause at any time upon thirty (30) days written notice of termination to City. LA #4952- 3368 -9356 v I ' 6 2 (c) If either Consultant or City Fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant's possession shall be returned to City. Consultant shall furnish to City a final invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section .4 of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 of this Agreement. SECTION 19. DEFAULT. In the event that Consultant is in default under the terns of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work perfonmed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to tenminate this Agreement under Section 18. Any failure on the part of the City to give notice of the Consultant's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. SECTION 20. NOTICES. All notices required or pennitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows: To City: City of Rosemead Attn: Jeff Allred, City Manager 8838 East Valley Boulevard Rosemead, CA 91770 To Consultant: City Works Attn: Steven Lazarian 2650 E. Foothill Blvd., Suite 201 Pasadena, CA 91107 LA #4852- 3368 -9356 vl 3 Notice shall be deemed effective on ' the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service. SECTION 21. WAIVER. Waiver by any party to this Agreement of any tern, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first -above written. , CITY OF ROSEMEAD Ln Steven Ly, Mayor ATTEST: Gloria Molleda, City Clerk APPROVED AS TO FORM go Rachel Richman City Attorney LA #4852- 3368 -9356 vl CONSULTANT CITY WORKS By: Title: By: _ Title: 9