CONTRACT 3367 Professional Services Agreement CLOSED3367.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
KND /AQUEDUCT ADVISORS
This AGREEMENT is entered into this 17 day of August, 2004 by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and
KND /AQUEDUCT ADVISORS, a California Corporation ( "CONSULTANT ").
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 a sum not to
exceed Five Thousand dollars ($5,000.00) for CONSULTANT's services. CITY
may modify this amount as set forth below. Unless otherwise specified by written
amendment to this Agreement, CITY will pay this sum as specified in the
attached Exhibit "A," which is incorporated by reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit `B," which is
incorporated by reference.
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 hours worked and
hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit "A ")
the tasks performed, the percentage of the task completed during the billing period, the
cumulative percentage completed for each task, the total cost of that work during the preceding
billing month and a cumulative cash flow curve showing projected and actual expenditures
versus time to date.
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. ADDITIONAL WORK.
A. CITY's city manager ( "Manager ") may determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ( "Additional
Work ") to complete the Scope of Work. If Additional Work is needed, the
Manager will give written authorization to CONSULTANT to perform such
Additional Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Payments over $5000 for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other terms and provisions of
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
i. Carefully 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.
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i 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.
8. TERM. The term of this Agreement will be from August 17, 2004 to December 31, 2004.
Unless otherwise determined by written amendment between the parties, this Agreement will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A ";
B. Termination as stated in Section 16.
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
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.
10. 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 hours (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.
11. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes
any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below (check all that apply):
A. ® Exhibit A: Scope of Work;
B. ❑ Exhibit B: Budget; and
C. ® Exhibit C: Proposal for Services.
12. 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
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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.
13. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
14. PERMITS AND LICENSES• Agreement, necessary petrmits l licenses, and certificates maintain during the term of this that
may be required in connection with the performance of services under this Agreement.
15. 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.
16. 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" 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.
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17. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement 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.
18. 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 provided by written agreement between the parties.
19. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i, 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 representatives, in the performance of this Agreement.
ii. 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 this Agreement, or its performance. 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.
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D. The requirements as to the types and limits Section 23a and any approval of
maintained by CONSULTANT as required y manner omit or
said insurance by CITY, are not intended to and will not in any
qualify the liabilities and obligations otherwise yt C he prow sons
pursuant to this Agreement, including, w ithout limitation,
concerning indemnification.
20. 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.
21. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and
free to contract control
orf all work and ehe
manner in which is it performed. CONSULTANT will b
be performed for other employers while under contract with
ate CITY. any pens on plan, T insurance,
agent or employee of CITY and is not entitled top p provision in this Agreement that
bonus or similar benefits CITY provides for its employees. Any p
may appear to give CITY the right to direct CONSULTANT atsCONSULTANT woilf the work
the
or to exercise a measure of control over the work means
direction of the CITY as to end results of the work only.
22. AUDIT OF RECORDS. CONSULTANT will maintain eementfull CITY w ll have free access l at
respect to all services and matters covered under this Agr make t _
all reasonable times to such records, and the right to examine and audit the proceedings and activs.
transcript therefrom, and to inspect all program data, documents, P
CONSULTANT will retain such financial and program records for at least three (3) years
after termination or final payment under this Agreement.
23. INSURANCE.
A. Before commencing performance under this Ag and and at all other times maintain the following t this
Agreement is effective, CONSULTANT procure
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below (check all that apply):
Tyne of Insurance
® Commercial general liability:
® Professional Liability
® Business automobile liability
® Workers compensation
Limits
$1,000,000
$1,000,000
$1,000,000
Statutory requirement
B. Commercial general liability insurance will meet or exceed the requirements of
Fol
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ISO -CGL Form No. CG 00 01 1185 or 88. 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
1185 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 0106 92, including symbol 1 (Any )
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 :VII."
F. Should CONSULTANT, for any Y as n fail to obtain
coverage a maintain the insurance
required by this Agreement, Y
CONSULTANT's expense and deduct the cost of such insurance from payments
due to CONSULTANT under this Agreement or terminate pursuant to Section 16.
24. USE OF SUBCONTRACTORS. CONSULTANT on of thisAgreement.s Such prior
approval to use any consultants while performing y p o
must approve of the proposed consultant and the terms of compensation.
e the
25. INCIDENTAL TASKS. CONSULTANT will
date and a short narrativetde cripaon of
status on the project, which will include a sche dule p
progress during the past month for each major schedule update.
of the work remaining and a
description of the work to be done before the next P
26. 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:
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If to CONSULTANT:
KND /Aqueduct Advisors
462 Stevens Ave., Ste. 308
Solana Beach, CA 92075
Daniel V Flanagan, Jr.
if tom-
City of El Segundo
350 Main Street
El Segundo, CA 90245
Attention: James Hansen
M
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Attention&
postage prepaid and properly
Any such written communications by mail will be conclusively deemed to have been received y
the addressee upon deposit thereof other n the instancesanotices will be deemed given at the time of
addressed as noted above. In
delivery. Changes may be made in the names or addresses o persons to whom notices are
to be given by giving notice in the manner prescribed in paragraph.
27.CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including, without limitation, CITY Is conflict of interest regulations.
28. SOLICITATION. CONSULTANT maintains and warrants s bona fide employee, employ
to ed nor
t or
retained any company or person, other than CONSULTAN solic
A reement. Further, CONSULTANT warrants that f de employees any fee,
secure this g
to pay any company or person, other than CONSULTANT 's bona
commission, percentage, brokerage fee, gift or other consideration CONSULTANT breach oroviolate resulting
from the award or making of this Agreement. Should
warranty, CITY may rescind this Agreement without liability.
29. THIRD PARTY BENEFICIARIES. This Agree and CITY and not for the benefit of any
generally for the exclusive benefit of CONSULTANT
other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or
CTTY's obligations under this Agreement.
30. INTERPRETATION. This Agreement was drafted ienvenuUe for any action involving a
nd exclus this
with the laws of the State of California, a
agreement will be in Los Angeles County.
31, COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement. the entire
32. ENTIRE AGREEMENT. This Agreement, and it t nadin smterms ors forth
der
other
understanding of the parties. There are no other un
expressed or implied, oral or written. There are One (1) Attachments to this Agreement. This
q
subs. uent
Agreement will bind and inure to the benefit of the parties to this Agreement and any
successors and assigns.
33. RULES OF CONSTRUCTION. Each Party had tthmoppw i bety to indepe
sndently s review this
Agreement with legal counsel. Accordingly, this Agre e
and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party.
In
Agreement is declared by a court of competent
34. SEVERABILITY. any Portion of this
' or unenforceable, then such portion will on enforceable eable modified
and, the
jurisdiction to be invalid id
extent necessary in the opinion of the court toeeme t such ll continue in full force and effect.
modified, such portion and the balance of this Ag
35. AUTHORITY/1VIOD
IFICATION. The Parties represent and warrant that all and t
may be modified by written amendment.
action has been taken by the Parties to authorize the undersigned to execute this Agreement
e in the actions described herein. This
engage C r or designee, may execute any such amendment on behalf of CITY
I'TY's executive manager, Agreement,
The Parties agree that this
36. ACCEPTANCE OF FACSIMILE SIGNATURES• is delivered by
agreements ancillary to this Agreement, and related documents to be of tared into in connection signature
with this Agreement will be considered signed ture wi 11 be treated in all respects as having the
w� simile sign
facsimile transmission. Such fac
same effect as an original signature.
hs of this Agreement are for convenience of
3'7. CAPTIONS. The captions of the parr P Agreement.
reference only and will not affect the interpretation of this rovision of this
38. TIME IS OF ESSENCE. Time is of the essence for each and every p
Agreement.
URE. Should performance of this Agreement be prevented due to fire, flood,
39. FORCE MADE overnment action, civil or military authority, the
explosion, acts of terrorism, war, embargo, g
natural elements, or other similar causes beyond the Parties' f eitherreasonable
Agree arty to the other e control, then
Agreement will immediately terminate without obligation
OF EXPERIENCE. By executing this Agreement, CONSULTANT
40. STATEMENT
represents that it has demonstrated trustworthiness and posses CONSULTANTtrepresents that li s
to perform the Agreement in a manner satisfactory to CIT completion ability,
financial resources, surety and insurance fence dealing with private consultants and experience in
personnel, current workload, experience
dealing with public agencies all suggest that CONSULTANT is capable of performing the
dea g
proposed contract and has a demonstrated capacity to deal fairly and effectively with an to
satisfy a public CITY.
[Signatures on next page]
3.501 • . .
IN WITNESS WH
EREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL pqUNDO
tren ,
r
City Manager
ATTEST:
— qP
Cindy Mortesen,
City Cle
APPRO
MARK
KN / ue c Advi rs
D niel F. Flanagan,
President
Taxpayer ID No.
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TS 7(6
�D II
Consulting Services to Be
Provided to the City of El Segundo by v
KND Aqueduct Advisors/Daniel V. Flanagan Jr.
consulting
r 20, Daniel V. Flanagan Jr. will provide lting services to the
As of July 23 d 04
� professional rate of $250/hour on the general subject of the
City of El Segundo at the p given to the current and
Specific attention will be g
Electricity Market
California. f he DynergY- owned power plant located in the City of El
future role, in that
Segundo.
Consulting services will be provided in phases, to begin as follows:
I. An overview report — as a primer — describing the current California
utcomes (no
electricity situation, its history, and expected near -term o
more than $1,000 will be allocated to this requirement)
p
A follow -up report, after review of the Phase I report, as to
II.
recommendations for further study or future action
III. Implementation assistance
e I re ill be delivered, via email, no later than Friday, July 30t ", 2004.
The Phase report will A
Daniel V. Flanagan Jr. f
President
K{ND Aqueduct Advisors
C: \Documents and Settings \dflanagan \Local Settings \Temporary Intemet Files \OLK7D \Consulting Services l.doc