CONTRACT 6398 Professional Services Agreement CLOSEDAgreement No. 6398
PROFESSIONAL SERVICES AGREEMENT
(AFFORDABLE HOUSING CONSULTING)
BETWEEN
THE CITY OF EL SEGUNDO AND
KEYSER MARSTON ASSOCIATES, INC.
This AGREEMENT is made and entered into this 20th day of May, 2022, by and
between the CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY")
and KEYSER MARSTON ASSOCIATES, INC., a California Corporation ("CONSULTANT").
The parties agree as follows:
1. CONSIDERATION,
A. As partial consideration, CONSULTANT agrees to perform the work listed in
the SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT an hourly rate
not to exceed $290 per hour, and a total sum not to exceed Ten Thousand
dollars ($10,000) for CONSULTANT's services. CITY may modify this amount
as set forth below.
2. SCOPE OF SERVICES,
A. CONSULTANT will provide to the CITY consulting services regarding
affordable housing options and requirements.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, calculation, and all other means whatsoever, except
as herein otherwise expressly specified to be furnished by CITY, necessary or
proper to perform and complete the work and provide the professional services
required of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing
at the time of performance utilized by persons engaged in providing similar services.
CITY will continuously monitor CONSULTANT's services. CITY will notify
CONSULTANT of any deficiencies and CONSULTANT will have fifteen (15) days after
such notification to cure any shortcomings to CITY's satisfaction. Costs associated
with curing the deficiencies will be borne by CONSULTANT.
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4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the tasks
performed, hours worked and hourly rates for each personnel category and
reimbursable costs.
5. NON -APPROPRIATION OF FUNDS. Payments due and payable to
CONSULTANT for current services are within the current budget and within an
available, unexhausted and unencumbered appropriation of the CITY. In the
event the CITY has not appropriated sufficient funds for payment of
CONSULTANT services beyond the current fiscal year, this Agreement will cover
only those costs incurred up to the conclusion of the current fiscal year.
6. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has"
Thoroughly investigated and considered the scope of services to be
performed,
ii, Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully
acquainted with the conditions there existing, before commencing the
services hereunder. Should CONSULTANT discover any latent or
unknown conditions that may materially affect the performance of the
services, CONSULTANT will immediately inform CITY of such fact and will
not proceed except at CONSULTANT's own risk until written instructions
are received from CITY.
7. TERM. This Agreement will be in effect from from May 20, 2022 to June 30,
2023 unless earlier terminated in accordance with Section 15.
8. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:.
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CONSULTANT furnishes proof of insurance as required
under Section 22 of this Agreement, and
ii, CITY gives CONSULTANT a written notice to proceed,
B. Should CONSULTANT begin work on any phase in advance of receiving
written authorization to proceed, any such professional services are at
CONSULTANT's own risk.
9. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of
the contracted services. If delay occurs, CONSULTANT must notify the Manager
within forty-eight (48) hours, in writing, of the cause and the extent of the delay
and how such delay interferes with the Agreement's schedule. The Manager will
extend the completion time, when appropriate, for the completion of the
contracted services.
10. CONSISTENCY. N/A.
11, CHANGES. CITY may order changes in the services within the general scope
of this Agreement, consisting of additions, deletions, or other revisions, and the
contract sum and the contract time will be adjusted accordingly. All such changes
must be authorized in writing, executed by CONSULTANT and CITY. The cost
or credit to CITY resulting from changes in the services will be determined in
accordance with written agreement between the parties.
12, TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
13, PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and
certificates that may be required in connection with the performance of services
under this Agreement.
14, WAIVER. CITY's review or acceptance of, or payment for, work product
prepared by CONSULTANT under this Agreement will not be construed to
operate as a waiver of any rights CITY may have under this Agreement or of any
cause of action arising from CONSULTANT's performance. A waiver by CITY of
any breach of any term, covenant, or condition contained in this Agreement will
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.
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15. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any
time with or without cause.
B. CONSULTANT may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the
termination notice. Except as otherwise provided in the termination notice,
any additional work performed by CONSULTANT after receiving a termination
notice will be performed at CONSULTANT's own cost; CITY will not be
obligated to compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by
CONSULTANT will, at CITY's option, become CITY's property, and
CONSULTANT will receive just and equitable compensation for any work
satisfactorily completed up to the effective date of notice of termination, not
to exceed the total costs under Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may
procure on its own terms services similar to those terminated.
F. By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this
Section.
16, OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps,
models, photographs and reports prepared by CONSULTANT under this Agreement,
with the exception of CONSULTANT's proprietary computer models, are CITY's
property. CONSULTANT may retain copies of said documents and materials as
desired but will deliver all original materials to CITY upon CITY's written notice. CITY
agrees that use of CONSULTANT's completed work product, for purposes other than
identified in this Agreement, or use of incomplete work product, is at CITY's own risk.
17, PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic
art work, prepared pursuant to this Agreement, will be released by CONSULTANT to
any other person or public CITY without CITY's prior written approval. All press
releases, including graphic display information to be published in newspapers or
magazines, will be approved and distributed solely by CITY, unless otherwise
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provided by written agreement between the parties.
18. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
Indemnification for Professional Services. CONSULTANT will
save harmless and indemnify and at CITY's request reimburse
defense costs for CITY and all its officers, volunteers, employees
and representatives from and against any and all suits, actions,
or claims, of any character whatever, brought for, or on account
of, any injuries or damages sustained by any person or property
resulting or arising from any negligent or wrongful act, error or
omission by CONSULTANT or any of CONSULTANT's officers,
agents, employees, or repre entatives, in the performance
of this Agreement, except for such loss or damage arising from
CITY's sole negligence or willful misconduct.
Indemnification for other Damages. CONSULTANT indemnifies
and holds CITY harmless from and against any claim, action,
damages, costs (including, without limitation, attorney's fees),
injuries, or liability, arising out of CONSULTANT's negligence or
wrongful act, error or omission in the performance of this
Agreement, except for such loss or damage arising from CITY's
sole negligence or willful misconduct. Should CITY be named in
any suit, or should any claim be brought against it by suit or
otherwise, whether the same be groundless or not, arising out
of this Agreement, or its performance, CONSULTANT will defend
CITY (at CITY's request and with counsel satisfactory to CITY)
and will indemnify CITY for any judgment rendered against it or
any sums paid out in settlement or otherwise.
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and certified volunteers.
C, It is expressly understood and agreed that the foregoing provisions will
survive termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 12, and any approval
of said insurance by CITY, are not intended to and will not in any manner limit
or qualify the liabilities and obligations otherwise assumed by CONSULTANT
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
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19. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement
without CITY's written approval are prohibited and will be null and void.
20. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all
work and the manner in which it is performed. CONSULTANT will be free to
contract for similar service to be performed for other employers while under
contract with CITY. CONSULTANT is not an agent or employee of CITY and is
not entitled to participate in any pension plan, insurance, bonus or similar
benefits CITY provides for its employees. Any provision in this Agreement that
may appear to give CITY the right to direct CONSULTANT as to the details of
doing the work or to exercise a measure of control over the work means that
CONSULTANT will follow the direction of the CITY as to end results of the work
only.
21. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records
with respect to all services and matters covered under this Agreement. CITY will
have free access at all reasonable times to such records, and the right to
examine and audit the same and to make transcript therefrom, and to inspect all
program data, documents, proceedings and activities. CONSULTANT will retain
such financial and program service records for at least three (3) years after
termination or final payment under this Agreement.
22. INSURANCE,
A. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, CONSULTANT will procure and
maintain the following types of insurance with coverage limits complying,
at a minimum, with the limits set forth below:
Tyge of Insurance
Commercial general
liability: Professional
Liability Business
automobile liability
Workers compensation
Limits
$2,000,000
$1,000,000
$1,000,000
Statutory requirement
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B.. Commercial general liability insurance will meet or exceed the
requirements of the most recent ISO-CGL Form. The amount of
insurance set forth above will be a combined single limit per occurrence
for bodily injury, personal injury, and property damage for the policy
coverage. Liability policies will be endorsed to name CITY, its officials,
and employees as "additional insureds" under said insurance coverage
and to state that such insurance will be deemed "primary" such that any
other insurance that may be carried by CITY will be excess thereto. Such
endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or
equivalent. Such insurance will be on an "occurrence," not a "claims
made," basis and will not be cancelable or subject to reduction except
upon thirty (30) days prior written notice to CITY.
C, Professional liability coverage will be on an "occurrence basis" if such
coverage is available, or on a "claims made" basis if not available. When
coverage is provided on a "claims made basis," CONSULTANT will
continue to renew the insurance for a period of three (3) years after this
Agreement expires or is terminated. Such insurance will have the same
coverage and limits as the policy that was in effect during the term of this
Agreement and will cover CONSULTANT for all claims made by CITY
arising out of any errors or omissions of CONSULTANT, or its officers,
employees or agents during the time this Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form
CA 00 01 06 92, including symbol 1 (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of
Insurance evidencing maintenance of the insurance required under this
Agreement and such other evidence of insurance or copies of policies as
may be reasonably required by CITY from time to time. Insurance must
be placed with insurers with a current A.M. Best Company Rating
equivalent to at least a Rating of "A:Vil."
F. Should CONSULTANT, for any reason, fail to obtain and maintain the
insurance required by this Agreement, CITY may obtain such coverage at
CONSULTANT's expense and deduct the cost of such insurance from
payments due to CONSULTANT under this Agreement or terminate
pursuant to Section 155.
23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement.
Such approval must approve of the proposed consultant and the terms of
compensation.
24. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide
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the status on the project, which will include a schedule update and a short
narrative description of progress during the past month for each major task, a
description of the work remaining and a description of the work to be done before
the next schedule update.
25, NOTICES. All communications to either party by the other party will be
deemed made when received by such party at its respective name and address
as follows:
If to CONSULTANT: If to CITY
Keyser Marston Associates, Inc. City of El Segundo
............... _........
1299 Fourth Street, Suite 408 350 Main Street
............... ...... ................................
San Rafael, CA 94901 El Segundo, CA 90245
........................._
Attention: Kathleen Head Attention: City Attorney's office
.......
Phone: (213) 622-8095 Phone: (310) 524-2304
Email: khead@keysermarston.co..m
Agreement No. 6398
Any such written communications by mail will be conclusively deemed to have been
received by the addressee upon deposit thereof in the United States Mail, postage
prepaid and properly addressed as noted above. In all other instances, notices will be
deemed given at the time of actual delivery. Changes may be made in the names or
addresses of persons to whom notices are to be given by giving notice in the manner
prescribed in this paragraph.
26, CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of
interest laws and regulations including, without limitation, CITY's conflict of
interest regulations.
27,, SOLICITATION. CONSULTANT maintains and warrants that it has not
employed nor retained any company or person, other than CONSULTANT's bona
fide employee, 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 CONSULTANT's bona fide employee, any fee, commission,
percentage, brokerage fee, gift or other consideration contingent upon or
resulting from the award or making of this Agreement. Should CONSULTANT
breach or violate this warranty, CITY may rescind this Agreement without liability.
28. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the
benefit of any other party. There will be no incidental or other beneficiaries of any
of CONSULTANT's or CITY's obligations under this Agreement.
29. INTERPRETATION. This Agreement was drafted in and will be construed in
accordance with the laws of the State of California, and exclusive venue for any
action involving this agreement will be in Los Angeles County.
30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal,
state, and local laws applicable to this Agreement.
31. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. This Agreement will bind and inure to the
benefit of the parties to this Agreement and any subsequent successors and
assigns.
3Z RULES OF CONSTRUCTION. Each Party had the opportunity to independently
review this Agreement with legal counsel. Accordingly, this Agreement will be
construed simply, as a whole, and in accordance with its fair meaning; it will not be
interpreted strictly for or against either Party.
33, SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified
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to the extent necessary in the opinion of the court to render such portion enforceable
and, as so modified, such portion and the balance of this Agreement will continue in
full force and effect.
34. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this
Agreement and to engage in the actions described herein. This Agreement may be
modified by written amendment.
35. ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this
Agreement, agreements ancillary to this Agreement, and related documents to be
entered into in connection with this Agreement will be considered signed when the
signature of a party is delivered by electronic (.pdf) or facsimile transmission. Such
electronic or facsimile signature will be treated in all respects as having the same
effect as an original signature.
36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience
of reference only and will not affect the interpretation of this Agreement.
37. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
38. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire,
flood, explosion, acts of terrorism, war, embargo, government action, civil or military
authority, the natural elements, or other similar causes beyond the Parties'
reasonable control, then the Agreement will immediately terminate without obligation
of either party to the other.
39, STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality,
fitness and capacity to perform the Agreement in a manner satisfactory to CITY.
CONSULTANT represents that its financial resources, surety and insurance
experience, service experience, completion ability, personnel, current workload,
experience in dealing with private consultants, and experience in dealing with public
agencies all suggest that CONSULTANT is capable of performing the proposed
contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public CITY.
[Signatures on next page]
Agreement No. 6398
Agreement No.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
the day and year first hereinabove written.
CITY OF EL SEGUNDO
Michael Allen,
Development Services Director
A7T
Tra4 Weaver„
City Clerk
APPROV AS TO FORM
by
Mark H sley
City Attorney
Page 11 of 11
KEYSER MARSTON ASSOCIATES, INC.
Kathleen Head
President and Managing Principal