CONTRACT 3151 Professional Services Agreement CLOSEDM1✓ 0
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AGREEMENT
FOR PROFESSIONAL SERVICES
THIS AGREEMENT, made and entered into this 15th day of Al2rii , 2003, between the
CITY OF EL SEGUNDO, a municipal corporation, hereinafter referred to as "City" and
the Martyrs BMW hereinafter referred to as "Consultant ". In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
1. SCOPE OF SERVICES. Consultant agrees to perform the services set forth in Exhibit
"A" "SCOPE OF SERVICES" and made a part hereof. Consultant represents and warrants that
it has the qualifications, experience and facilities to properly perform said services in a
thorough, competent and professional manner and shall, at all times during the term of this
Agreement, have in full force and effect, all licenses required of it by law, including, but not
limited to, a valid El Segundo Business License. Consultants shall begin its services under
this Agreement on June 1, , 2003. Consultant shall complete each of the services set
forth in Exhibit A to the City's satisfaction. If the City is not satisfied with any such services, the
Consultant shall work on such matter until the City approves of the service. Further, Consultant
shall complete the services set forth in Exhibit A strictly according to the schedule provided
therein.
2. STATUS OF CONSULTANT. Consultant is and shall at all times remain as to the City a
wholly independent contractor. 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 of its officers, employees or agents 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 it or any of its
officers, employees or agents are in any manner officers, employees or agents of the City.
Consultant shall not incur or have the power to incur any debt, obligation or liability whatever
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against City, or bind City in any manner. Consultant shall not disseminate any information or
reports gathered or created pursuant to this Agreement without the prior written approval of City
except information or reports required by government agencies to enable Consultant to perform
its duties under this Agreement.
3. CONSULTANT'S KNOWLEDGE OF APPLICABLE LAWS. Consultant shall keep itself
informed of applicable local, state and federal laws and regulations which may affect those
employed by it or in any way affect the performance of its services pursuant to this Agreement.
Consultant shall observe and comply with all such laws and regulations affecting its
employees. City and its officers and employees, shall not be liable at law or in equity as a
result of any failure of Consultant to comply with this section.
4. PERSONNEL. Consultant shall make every reasonable effort to maintain the stability
and continuity of Consultant's staff assigned to perform the services hereunder and shall obtain
the approval of the City Manager of all proposed staff members performing services under this
Agreement prior to any such performance.
5. COMPENSATION AND METHOD OF PAYMENT. Compensation to the Consultant
shall be as set forth in Exhibit "B" hereto and made a part hereof. Payments shall be made in
approximately thirty (30) days after receipt of each invoice as to all non - disputed fees. If the
City disputes any of consultant's fees it shall give written notice to Consultant in 30 days of
receipt of an invoice of any disputed fees set forth on the invoice.
6. ADDITIONAL SERVICES OF CONSULTANT. Consultant shall not be compensated for
any services rendered in connection with its performance of this Agreement which are in
addition to those set forth herein or listed in Exhibit "A ", unless such additional services are
authorized in advance and in writing by the City Manager. Consultant shall be compensated for
any additional services in the amounts and in the manner as agreed to by City Manager and
Consultant at the time City's written authorization is given to Consultant for the performance of
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10. COOPERATION BY CITY. All public information, data, reports, records, and maps as
are existing and available to City as public records, and which are necessary for carrying out
the work as outlined in the Scope of Services, shall be furnished to Consultant in every
reasonable way to facilitate, without undue delay, the work to be performed under this
Agreement.
11. OWNERSHIP OF DOCUMENTS. Upon satisfactory completion of, or in the event of
termination, suspension or abandonment of, this Agreement, all original maps, models,
designs, drawings, photographs, studies, surveys, reports, data, notes, computerfiles, files and
other documents prepared in the course of providing the services to be performed pursuant to
this Agreement shall, become the sole property of City. With respect to computer files,
Consultant shall make available to the City, upon reasonable written request by the City, the
necessary computer software and hardware for purposes of accessing, compiling, transferring
and printing computer files.
12. RELEASE OF INFORMATION /CONFLICTS OF INTEREST.
A. All information gained by Consultant in performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City's prior
written authorization excepting that information which is a public record and subject to
disclosure pursuant to the California Public Records Act, Government Code 3 6250, et
seq. Consultant, its officers, employees, agents or subcontractors, shall not without
written authorization from the City Manager or unless requested by the City Attorney,
voluntarily provide declarations, letters of support, testimony at depositions, response to
interrogatories or other information concerning the work performed under this
Agreement or relating to any project or property located within the City. Response to a
subpoena or court order shall not be considered "voluntary" provided Consultant gives
City notice of such court order or subpoena.
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said services.
7. ASSIGNMENT. All services required hereunder shall be performed by Consultant, its
employees or personnel under direct contract with Consultant. Consultant shall not assign to
any subcontractor the performance of this Agreement, nor any part thereof, nor any monies
due hereunder, without the prior written consent of City Manager.
8. FACILITIES AND RECORDS. City agrees to provide: suitably equipped and furnished
office space, public counter, telephone, and use of copying equipment and necessary office
supplies for Consultant's on -site staff, if any.
Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by City that relate to the performance
of services under this Agreement. Consultant shall maintain adequate records of services
provided in sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and shall be clearly
identified and readily accessible. Consultant shall provide free access to the representatives of
City or its designees at reasonable times to such books and records, shall give City the right to
examine and audit said books and records, shall permit City to make transcripts therefrom as
necessary, and shall allow inspection of all work, data, documents, proceedings and activities
related to this Agreement. Such records, together with supporting
documents, shall be maintained for a period of three (3) years after receipt of final payment.
9. TERMINATION OF AGREEMENT. The Consultant's performance hereunder shall be
completed by June 1. 2006 at which time this agreement shall terminate. The City
upon 30 days written notice or 120 days by contractor written notice may terminate with or
without cause this Agreement. In the event of such termination, Consultant shall be
compensated for non - disputed fees under the terms of this Agreement up to the date of
termination.
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14. INDEMNIFICATION.
A. Consultant represents it is skilled in the professional calling necessary to perform
the services and duties agreed to hereunder by Consultant, and City relies upon the
skills and knowledge of Consultant. Consultant shall perform such services and duties
consistent with the standards generally recognized as being employed by professionals
performing similar service in the State of California.
B. Consultant is an independent contractor and shall have no authority to bind City
nor to create or incur any obligation on behalf of or liability 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. City, its elected and appointed
officials, officers, agents, employees and volunteers (individually and collectively,
"Indemnitees ") shall have no liability to Consultant or to any other person for, and
Consultant shall indemnify, defend, protect and hold harmless the Indemnitees from and
against, any and all liabilities, claims, actions, causes of action, proceedings, suits,
damages, judgments, liens, levies, costs and expenses of whatever nature, including
reasonable attorneys' fees and disbursements (collectively "Claims "), which the
Indemnitees may suffer or incur or to which the Indemnitees may become subject by
reason of or arising out of any injury to or death of any person(s), damage to property,
loss of use of property, economic loss or otherwise occurring as a result of or allegedly
caused by the performance or failure to perform by Consultant of Consultant's services
under this agreement or the negligent or willful acts or omissions of Consultant, its
agents, officers, directors or employees, in performing any of the services under this
agreement.
If any action or proceeding is brought against the Indemnitees by reason of any
of the matters against which Consultant has agreed to indemnify the Indemnitees as
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If Consultant or any of its officers, employees, consultants or subcontractors does
voluntarily provide information in violation of this Agreement, City has the right to reim-
bursement and indemnity from Consultant for any damages caused by Consultant's
conduct, including the City's attorney's fees.
Consultant shall promptly notify City should Consultant, its officers, employees,
agents or subcontractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions or other
discovery request, court order or subpoena from any party regarding this Agreement
and the work performed thereunder or with respect to any project or property located
within the City. City retains the right, but has no obligation, to represent Consultant
and /or be present at any deposition, hearing or similar proceeding. Consultant agrees
to cooperate fully with City and to provide City with the opportunity to review any
response to discovery requests provided by Consultant. However, City's right to review
any such response does not imply or mean the right by City to control, direct, or rewrite
said response.
B. Consultant covenants that neither they nor any officer or principal of their firm has
any interest in, or shall they acquire any interest, directly or indirectly which will conflict in
any manner or degree with the performance of their services hereunder. Consultant
further covenants that in the performance of this Agreement, no person having such
interest shall be employed by them as an officer, employee, agent, or subcontractor
without the express written consent of the City Manager.
13. DEFAULT. In the event that Consultant is in default of any provision of this Agreement,
City shall have no obligation or duty to continue compensating Consultant for any work
performed after the date of default and can terminate this Agreement immediately by
written notice to the Consultant.
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endorsement CA 0025, or equivalent forms subject to the written
approval of the City.
(iii) Workers' Compensation insurance as required by the Labor Code
of State of California and Employer's Liability insurance and
covering all persons providing services on behalf of the Consultant
and all risks to such persons under this Agreement. (Not needed if
Self- employed with no employees.)
(iv) Errors and omissions liability insurance appropriate to the
Consultant's profession.
(b) Minimum Limits of Insurance. Consultant shall maintain limits of
insurance no less than:
(i) General Liability: $1,000,000 per occurrence for bodily injury,
personal injury and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the activities related to
this Agreement or the general aggregate limit shall be twice the required
occurrence limit.
(ii) Automobile Liability: Including owned, non -owned and hired
vehicles for bodily injury and property damage with (See cover
letter (page 1) for actual dollar level Requirements):
At least $1,000,000 per occurrence.
At least $100,000 - $300,000 per occurrence.
As required by State Statutes. A copy of your current policy
must be submitted naming yourself and or your company.
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above provided, Consultant, upon notice from the CITY, shall defend the Indemnitees at
Consultant's expense by counsel acceptable to the City. The Indemnitees need not
have first paid any of the matters as to which the Indemnitees are entitled to indemnity
in order to be so indemnified. The insurance required to be maintained by Consultant
under paragraph 15 shall ensure Consultant's obligations under this paragraph 14(b),
but the limits of such insurance shall not limit the liability of Consultant hereunder. The
provisions of this paragraph 14(b) shall survive the expiration or earlier termination of
this agreement.
The Consultant's indemnification does not extend to Claims occurring as a result of the
City's negligent or willful acts or omissions.
CONSULTANT HAS READ THIS SECTION 14 IN ITS ENTIRETY AND KNOWINGLY
AND WILLINGLY ACCEPTS THE OBLIGATIONS CONTAINED HEREIN.
15. INSURANCE.
A. Insurance Requirements. Consultant shall provide and maintain insurance
acceptable to the City Attorney in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the work hereunder by Consultant,
its agents, representatives or employees. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A:VII. Consultant shall provide the following
scope and limits of insurance:
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
(i) Insurance Services Office form Commercial General Liability
coverage (Occurrence Form CG 0001).
(ii) Insurance Services Office form number CA 0001 (Ed. 1/87)
covering Automobile Liability, including code 1 "any auto" and
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employees or volunteers shall apply in excess of, and not contribute with,
Consultant's insurance.
(iii) 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.
(iv) Any failure to comply with the reporting or other provisions of the
policies including breaches of warranties shall not affect coverage
provided to the City, its officers, officials, employees or volunteers.
(c) Workers' Compensation and Employer's Liability Coverage. Unless
the City Manager otherwise agrees in writing, the insurer shall agree to
waive all rights of subrogation against City, its officers, officials,
employees and agents for losses arising from work performed by
Consultant for City.
(d) Garage Liability Coverage. Including owned, non -owned and hired
vehicles with at least $1,000,000 per occurrence.
C. Other Requirements. Consultant agrees to deposit with City, at or before the
effective date of this contract, certificates of insurance necessary to satisfy City that the
insurance provisions of this contract have been complied with. The City Attorney may
require that Consultant furnish City with copies of original endorsements effecting
coverage required by this Section. The certificates and endorsements are to be signed
by a person authorized by that insurer to bind coverage on its behalf. City reserves the
right to inspect complete, certified copies of all required insurance policies, at any time.
(a) Consultant shall furnish certificates and endorsements from each
subcontractor identical to those Consultant provides.
(b) Any deductibles or self- insured retentions must be declared to and
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(iii) Workers' Compensation and Employer's Liability: Workers'
Compensation as required by the Labor Code of the State of
California and Employers Liability limits of $1,000,000 per accident.
(iv) Errors and Omissions or Malpractice or Professional Liability:
At least $1,000,000 per occurrence.
(v) Garage Liability Coverage. Including owned, non -owned and
hired vehicles with at least $1,000,000 per occurrence.
B. Other Provisions. Insurance policies required by this Agreement shall contain
the following provisions:
(a) All Policies. Each insurance policy required by this paragraph 15 shall be
endorsed and state the coverage shall not be suspended, voided, canceled by
the insurer or either party to this Agreement, reduced in coverage or in limits
except after 30 days' prior written notice by Certified mail, return receipt
requested, has been given to the City.
(b) General Liability and Automobile Liability Coverages.
(i) City, its officers, officials, and employees and volunteers are to be
covered as additional insureds as respects: liability arising out of activities
Consultant performs, products and completed operations of Consultant;
premises owned, occupied or used by Consultant, or automobiles owned,
leased or hired or borrowed by Consultant. The coverage shall contain no
special limitations on the scope of protection afforded to City, its officers,
officials, or employees.
(ii) Consultant's insurance coverage shall be primary insurance as
respect to City, its officers, officials, employees and volunteers. Any
insurance or self insurance maintained by City, its officers, officials,
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approved by City. At the option of the City, either the insurer shall reduce or
eliminate such deductibles or self- insured retentions as respects the City, its
officers, officials, employees and volunteers; or the Consultant shall procure a
bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
(c) The procuring of such required policy or policies of insurance shall not be
construed to limit Consultant's liability hereunder nor to fulfill the indemnification
provisions and requirements of this Agreement.
16. ENTIRE AGREEMENT. This Agreement is the complete, final, entire and exclusive
expression of the Agreement between the parties hereto and supersedes any and all other
agreements, either oral or in writing, between the parties with respect to the subject matter
herein. Each party to this Agreement acknowledges that no representations by any party which
are not embodied herein and that no other agreement, statement, or promise not contained in
this Agreement shall be valid and binding.
17. GOVERNING LAW. The City and Consultant understand and agree that the laws of the
State of California shall govern the rights, obligations, duties and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation concerning this
Agreement shall take place in the Los Angeles County Superior Court.
18. ASSIGNMENT OR SUBSTITUTION. City has an interest in the qualifications of and
capability of the persons and entities who will fulfill the duties and obligations imposed upon
Consultant by this Agreement. In recognition of that interest, neither any complete nor partial
assignment of this Agreement may be made by Consultant nor changed, substituted for,
deleted, or added to without the prior written consent of City. Any attempted assignment or
substitution shall be ineffective, null, and void, and constitute a material breach of this
Agreement entitling City to any and all remedies at law or in equity, including summary
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termination of this Agreement.
19. 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. CITY's city manager, or designee, may execute any such amendment on behalf of
CITY.
20. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on
behalf of Consultant warrants and represents that he /she /they has /have the authority to
execute this Agreement on behalf of his /her /their corporation and warrants and represents that
he /she /they has /have the authority to bind Consultant to the performance of its obligations
hereunder.
21. NOTICES. Notices shall be given pursuant to this Agreement by personal service on the
party to be notified, or by written notice upon such party deposited in the custody of the United
States Postal Service addressed as follows:
Cam.
City of El Segundo
City Clerk's office
350 Main Street, Room 5
El Segundo, California 90245 -3895
Telephone: (310) 524 -2307
Facsimile: (310) 615 -0529
Consultant.
Attention: Marty's BMW
1730 W. Carson St.
Torrance, Ca. 90501
The notices shall be deemed to have been given as of the date of personal service, or three (3)
days after the date of deposit of the same in the custody of the United States Postal Service.
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22. SEVERABILITY. The invalidity in whole or in part of any provision of this Agreement
shall not void or affect the validity of the other provisions of this Agreement.
23. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
24. NO THIRD PARTY BENEFICIARY. This Agreement and every provision herein is 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.
25. EFFECT OF CONFLICT. In the event of any conflict, inconsistency, or incongruity
between any provision of this Agreement, its attachments, the purchase order, or notice to
proceed, the provisions of this Agreement will govern and control.
26. 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 and will be interpreted as being drafted jointly by the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and
year first above written.
Company
Name: Marty's BMW, 1730 W. Carson St. Torrance, Ca.90501
By: Mitch Berger 41�
Title: Service Manager
Phone: (310)320-7040 Z Fax: (310)320 -9763 e-mail: www.martysbmw.com
By: r /
Title: AV4
Phone:
0 30.70 1/0 Fax:
Signatures continued on next page.
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e -mail: wwLJ - v.7,t4ySia�u�..cc��i -�
CITY OF EL UNDO:
City Manages
ATTEST:
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Cindy i
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City Clerk
APP ED TO CONTENT: APPROVED AS TO FORM:
PSA Originator /Contact initials Mark Hensley
City Attorney
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