PROFESSIONAL SERVICES AGREEMENT
By and Between the
ANAHEIM HOUSING AUTHORITY
and
OVERLAND, PACIFIC & CUTLER, LLC
i
TABLE OF CONTENTS
Page
Section 1. Status of Parties......................................................................................................1
1.1 Authority ................................................................................................................. 1
1.2 Consultant ............................................................................................................... 1 Section 2. Services of Consultant. ..........................................................................................1
2.1 Description of Services ........................................................................................... 1
2.2 Services to be Provided As Required...................................................................... 2
2.3 Time for Performance ............................................................................................. 2
2.4 Compliance with Law ............................................................................................. 2
2.5 Licenses, Permits, Fees and Assessments ............................................................... 2
2.6 Nondiscrimination................................................................................................... 2
2.7 Familiarity with Work............................................................................................. 2
2.8 Additional Services ................................................................................................. 3 Section 3. Term. .......................................................................................................................3 Section 4. Compensation. ........................................................................................................3
4.1 Amount of Compensation ....................................................................................... 3
4.2 Billing and Payment Procedures ............................................................................. 3 Section 5. Coordination of Services. ......................................................................................3
5.1 Representative of Authority .................................................................................... 3
5.2 Representative of Consultant .................................................................................. 4
5.3 Prohibition Against Subcontracting and Assignments ........................................... 4
5.4 Independent Contractor ........................................................................................... 4 Section 6. Insurance and Indemnification. ............................................................................4
6.1 Insurance ................................................................................................................. 4
6.2 Indemnification ....................................................................................................... 7 Section 7. Enforcement of Agreement. ..................................................................................4
7.1 Events of Default .................................................................................................... 7
7.2 Immediate Termination for Consultant’s Default ................................................... 8
7.3 Termination Without Cause .................................................................................... 8 Section 8. Use and Ownership of Documents and Data. ......................................................8
8.1 Data to be Furnished by Authority.......................................................................... 8
ii
8.2 Ownership of Documents ....................................................................................... 8 Section 9. Miscellaneous Provisions. ......................................................................................8
9.1 Waiver ..................................................................................................................... 8
9.2 Notices .................................................................................................................... 8
9.3 Relationship of Parties ............................................................................................ 9
9.4 No Third Party Rights ............................................................................................. 9
9.5 Non-Liability of Members, Officials and Employees of the Authority .................. 9
9.6 Controlling Law .................................................................................................... 10
9.7 Time of the Essence .............................................................................................. 10
9.8 Remedies Cumulative ........................................................................................... 10
9.9 Effect of Invalidity ................................................................................................ 10
9.10 Successors and Assigns......................................................................................... 10
9.11 Entire Agreement .................................................................................................. 10
9.12 Authority ............................................................................................................... 10
9.13 Conflicts of Interest............................................................................................... 11
9.14 Time for Acceptance of Agreement by Authority. ............................................... 11
9.15 Conflicts or Inconsistencies .................................................................................. 11
EXHIBITS
Exhibit A Description of Services
Exhibit B Schedule of Compensation
1 PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into as of January 10, 2023 (the “Effective Date”), by and between ANAHEIM HOUSING AUTHO RITY, a public body, corporate and politic (the “Authority”),
A
N
D
OVERLAND, PACIFIC & CUTLER, LLC, a Delaware limited liability company (the “Consultant”).
RECITALS
A. From time to time, the Authority requires property acquisition and relocation services consistent with State guideline s as requested and as generally described in Exhibit A attached hereto and incorporated herein by this reference (the “Services”).
B. The Authority and Consultant (each, a “Party” and jointly, the “Parties”) desire to enter into an agreement pursuant to whic h the Consultant will provide the S ervices as requested by the Authority.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDI TIONS CONTAINED HEREIN, THE AUTHORITY AND THE CONSULTANT AGREE AS FOLLOWS:
Section 1. Status of Parties.
1.1 Authority. The Consultant acknowledges that the Authority is a public entity organized and existing under the Housing Authorities Law (California Health & Safety Code Section 34200 et seq.).
1.2 Consultant. Consultant represents that Consultant is a Delaware limited liability company, formed and in good standing under all applicable laws.
Section 2. Services of Consultant.
2.1 Description of Services. In compliance with all of the terms and conditions of this Agreement, Consultant shall provide the Services on an “as required” basis (the “Description of Services”), as authorized by the Director (as hereinafter defined in Section 5.1). Consultant represents and warrants that all Services to be provided hereunder shall be performe d in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services.
2 2.2 Services to be Provided As Required. Consultant acknowledges and agrees that Authority shall request that Consultant prov ide the Services on an “as required” basis and that Authority does not guaranty a minimum number of hours for which Consultant’s services shall be requested and required hereunder. Consultant further acknowledges and agrees that this Agreement and any req uest for the provision of services hereunder is nonexclusive and that the Authority may enter into similar agreements with other entities for the provision of similar services.
Consultant shall provide only those services authorized from time to time by written work orders executed by the Authority (each, a “Work Order Authorization”). Within five (5) days of Consultant’s receipt of a verbal request from the Authority, Consultant shall submit to Authority a detailed scope of work, project budget and schedule for the completion of work requested by the Authority. The Consultant shall not commence such work until the Authority has approved in writing the scope of work, project budget and schedule. Such scope of work, project budget and/or schedule may be modified by the mutual written agreement of the Authority and Consultant.
Written Work Order Authorizations and approved scopes of work, project budgets and schedules shall be considered to be addenda to this Agreement.
2.3 Time for Performance . Time is of the essence in the performance of this Agreement. Consultant shall perform and complete all services as may be requested pursuant to Section 2.2 hereof in a timely and expeditious manner. Consultant shall perform such services in accordance with those schedules which Consultant and the Authority may mutually agree to as to any particular study, job or analysis.
Consultant shall not be responsible for delays caused by circumstances beyond its reasonable control, provided that Consultant has delivered to the Authority written notice of the cause of any such delay within ten (10) days of the occurrence of such cause.
2.4 Compliance with Law . All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulatio ns and laws of the Authority of Anaheim and any Federal, State or local governmental Authority of competent jurisdiction.
2.5 Licenses, Permits, Fees and Assessments . Consultant shall obtain, at Consultant’s sole cost and expense, such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for the performance of the Services required by this Agreement.
2.6 Nondiscrimination. Consultant agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry or national origin in its provision of services. To the extent this Agreement provides that Consultant offer accommodations or services to the public, such accommodations or services shall be offered by Consultant to the public on fair and reasonable terms.
2.7 Familiarity with Work. By executing this Agreement, Consultant represents and warrants that Consultant (i) has thoroughly investigated and considered the Services to be
3 performed, (ii) has carefully considered how the Service s should be provided, and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by the Authority, Consultant shall immediately inform the Authority of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Authority.
2.8 Additional Services . Consultant shall provide Services in addition to those specified in the Description of Services when directed to do so in writing by the Authority, provided that Consultant shall not be required to provide any such additional Services wit hout compensation.
Section 3. Term.
The term of this Agreement shall commence on January 10, 2023 and shall terminate December 31, 2023, unless sooner terminated as provided herein ("Term").
Section 4. Compensation.
4.1 Amount of Compensation. It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement, including sub -consultant fees, if any, and reimbursable expenses, shall not exceed ONE HUNDRED THOUSAND AND NO/100 DOLLARS $100,000.00 ("Maximum Compensation"), without the prior written authorization of Authority. Authority agrees to pay, and Consultant agrees to accept, as full compensation for Consultant's services, compensation at the hourly rates for the positions shown on Exhibit B attached hereto and incorporated by this reference herein.
4.2 Billing and Payment Procedures . C onsultant shall present monthly itemized invoices for Services performed during the previous monthly period to the Authority. Each invoice shall state the date the Services were provided and the number of hours spent providing the Services. If requested by the Authority, Consultant shall present additional documentation evidencing the provision of Services satisfactory to the Authority. The Authority agrees to approve or disapprove Consultant’s invoice and/or additional documentation, as the case may be, within ten (10) days after the Authority’s receipt of the invoice and/or additional documentation. The Authority agrees to pay the Consultant for work satisfactorily performed and expenses properly incurred within thirty (30) days after the Authority’s approval of a statement from the Consultant describing such work and expenses. The Authority shall not be responsible to pay Consultant for any Services or expenses in excess of the Maximum Compensation. Consultant shall notify Authority in writing when se venty-five percent (75%) of the Maximum Compensation has been reached in any fiscal year during the Term of this Agreement.
Section 5. Coordination of Services.
5.1 Representative of Authority. The Authority's Director of Housing and Community Development, or such pers on’s designee, (the “Director”) shall represent the Authority in all matters pertaining to this Agreement. Whenever a reference is made herein to an
4 action or approval to be undertaken by the Authority, the Director is authorized to act unless this Agreement specifically provides otherwise or the context should otherwise require.
5.2 Representative of Consultant . Michele Folk is hereby designated as being the principal and representative of Consultant authorized to act on Consultant’s behalf with respect to the services and work to be provided hereunder and make all decisions in connection therewith.
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal are a substantial inducement for the Authority to enter into this Agreement.
Therefore, the foregoing principal shall be responsible during the Term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally super vise the provision of Services hereunder. The foregoing principal may not be changed by Consultant and no other personnel may be assigned to supervise the Services to be provided hereunder without the express written consent of the Authority.
5.3 Prohibition Against Subcontracting and Assignments . Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assignable or transferable or encumbered in any way without the prior written consent of Authority. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to Authority. This is a personal services contract and the Consultant was chosen on the basis of characteristics unique to the Consultant. Authority shall have the right to unreasonably or arbitrarily withhold its consent to any such assignment, transfer, encumbrance, pledge, subuse, or permission.
5.4 Independent Contractor. Consultant and any agent or employee of Consultant shall act in an independent capacity and not as officers or employees of Authority. Authority assumes no liability for Consultant's actions and performance, nor assumes responsibility for taxes, bonds, payments, or other commitments, implied or explicit, by or for Consultant. Consultant shall not have authority to act as an agent on behalf of Authority unless specifically authorized to do so in writing. Consultant acknowledges that it is aware that because it is an independent contractor, Authority is making no deduction from any amount paid to Consultant and is not contributing to any fund on its behalf. Consultant disclaims the right to any fee or benefits except as expressly provided for in this Agreement.
As respects all acts or omissions of Consultant re lating to Consultant’s responsibility for taxes, bonds, payments, or other commitments, implied, or explicit, by or for Consultant, the Consultant agrees to indemnify, defend (at the Authority's option), and hold harmless the Authority, its officers, agent s, employees, representatives, and volunteers from and against any and all claims, demands, defense costs, liability, or consequential damages of any kind or nature arising out of or in connection with the Consultant's performance or failure to perform und er this Section.
Section 6. Insurance and Indemnification.
6.1 Insurance. Without limiting Authority’s right to indemnification, it is agreed that Consultant shall secure, prior to commencing any activities under this Agree ment, and maintain, during the Term of this Agreement, insurance coverage as follows:
5 6.1.1 Required Insurance Coverage. Consultant shall secure and maintain the following insurance coverage:
(a) Workers’ Compensation Insurance, as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. (b) Commercial/Comprehensive General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s Liability where appropriate, in an amount not less than $2 ,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Authority, in writing, at the inception of this Agreement.
(c) Commercial/Comprehensive Automobile Liability C overage, including—as applicable —owned, non -owned, and hired auto s, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law. (d) Professional Liability Insurance in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Authority, in writing, at the inception of this Agreement.
Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement mus t be submitted for approval by City of Anaheim ’s Risk Manager prior to the inception of the final Agreement.
6.1.2 Required Clauses in Po licies. Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
“This insurance shall not be cancelled, or limited in scope or coverage by Consultant, until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium that shall provide for not less than ten (10) days’ notice.”
Each ins urance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“It is agreed that any insurance maintained by Consultant pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self - insurance maintained by the Anaheim Housing Authority or City of Anaheim.”
6 “The Anaheim Housing Authority, its officers, agents, employees, representatives and Authority-designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the Anaheim Housing Authority.”
6.1.3 Required Certificates and Endorsements . Prior to commencing any work under this Agreement, Consultant shall deliver to Authority insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Consultant shall provide Authority (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to Authority evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise include d in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to Authority, with prior written permission from Authority. In the event th at a claim or other legal action is filed against Authority, and if Authority, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Authority has the right to demand, and to receive within a reasonable t ime period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Consultant shall fully defend, hold harmless, and indemnify Authority against any such claim or other legal action.
6.1.4 Remedies for Default Re: Insurance . In addition to other remedies Authority may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Authority may, at its sole option:
(a) Order Consultant to stop work under this Agreement and/or withhold any payment(s) that become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof;
(b) Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies Authority may have and is not the exclusive remedy for Consultant’s failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed in any way as limiting the extent that Consultant may be held responsible for payments of damages to persons or property resulting from Consultant’s, (or Consultant’s Agent or Sub-Agent, if any) performance of the work covered under this Agreement.
In the event Consultant hires other persons or firms to perform some of the work related to this Agreement, Consultant shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Consultant under this Agreement (except for firms that are not performing professional
7 services—such firms shall not be req uired to carry the above -referenced professional liability insurance); and in either instance, Consultant shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Authority.
The City of Anaheim’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such reduction is in Authority’s best interest.
6.2 Indemnification. As respects acts, errors or omissions in the performance of professional services, C onsultant agrees to indem nify and hold harmless Authority, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the Consultant or any Sub-Agent in the performance of professional services under this Agreement.
As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, Consultant agrees to indemnify, defend (at Authority’s option), and hold harmless Authority, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with Consultant’s (or Consultant’s A gent or Sub-Agent, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of Authority.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not Authority, Consultant, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
Section 7. Enforcement of Agreement.
7.1 Events of Default. For purposes of this Section 7, the word “Default” shall mean the failure of Consultant to perform any of Consultant’s duties or obligations or the breach by Consultant of any of the terms and conditions set forth in this Agreement. In addition, Consultant shall be deemed to be in Default upon Consultant’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets, (ii) making a general assignment for the benefit of creditors, (iii) being adjudged bankrupt, (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing), or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Consultant’s assets or of Consultant’s interests hereunder.
Authority shall not be deemed to be in Default in the performance of any obligation required to be performed by Authority hereunder unless and until Authority has failed to perform such obligation for a period of thirty (30) days after receipt of writ ten notice from Consultant specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Authority’s obligation is such that more than thirty (30) days are required for its
8 performance, then Authority shall not be deemed to be in Default if Authority shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
7.2 Immediate Termination for Consultant’s Default . In the event of any D efault by Consultant, Authority may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Consultant of written notice from Authority. In such event, Consultant shall have no further rights hereunder; Authority shall have all other rights and remedies as provided by law.
7.3 Termination Without Cause. Either Authority or Consultant may terminate this Agreement at any time without the necessity of cause or Default by the other Party by giving fifteen (15) days' notice in writing to the other Party. In such event, the Parties shall have no further rights hereunder, except that Consultant shall be paid for all Services rendered prior to such termination.
Section 8. Use and Ownership of Documents and Data.
8.1 Data to be Furnish ed by Authority. Authority shall furnish to Consultant such documents and materials as may be relevant and pertinent to the provision of Services hereunder as Authority may possess or acquire.
8.2 Ownership of Documents . All documents and materials furnish ed by the Authority to Consultant pursuant to Section 8.1 hereof shall remain the property of the Authority and shall be returned to the Authority upon termination of this Agreement. All documents and materials prepared by Consultant hereunder shall become the property of the Authority at the time of payment to Consultant of all fees and expenses for their preparation, and shall be delivered to the Authority by Consultant at the request of the Authority. The documents and materials prepared by Consultant hereunder shall not be used by the Authority or others, except for the purpose for which they were intended. The Authority agrees not to associate Consultant’s name with any documents or materials not prepared by Consultant.
Section 9. Miscellaneous Provisions.
9.1 Waiver. Inaction by Authority or Consultant with respect to a Default hereunder shall not be deemed to be a waiver of such Default. The waiver by either Authority or Consultant of any Default hereunder shall not be deemed to be a waiver of any subsequent Default.
9.2 Notices. All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either Authority or Consultant to the other shall be deemed to have been given when in writing and personally delivere d or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
9 If to Authority: Secretary of the Anaheim Housing Authority 200 S. Anaheim Boulevard, 2nd Floor
City of Anaheim
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Executive Director
Anaheim Housing Authority
201 S. Anaheim Boulevard, 10th Floor
Anaheim, California 92805
FAX No. (714) 765-4630
City Attorney
City of Anaheim
200 S. Anaheim Boulevard, 3rd Floor
Anaheim, California 92805
FAX No. (714) 765-5123
To Consultant: Overland, Pacific & Cutler, LLC
5000 Airport Plaza Dr. Suite 250
Long Beach, California 90815
Telephone No.: (949) 268-5710
Attention: Michele Folk
9.3 Relationship of Parties. Nothing contained herein shall be deemed or construed by the Parties, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that Consultant is and will be at all times an independent contractor pursuant to this Agreement and shall not, in any way, be considered to be an officer, agent or employee of the Authority.
9.4 No Third Party Rights. The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
9.5 Non-Liability of Members, Officials and Employees of the Authority. No member, official or employee of the Authority shall be personally liable to Consultant, or any successor in interest, in the event of any Default or breach by the Authority or for any amount which may become due to Consultant or Consultant’s successors, or on any obligation under the terms of this Agreement. Consultant hereby waives and releases any claim Consultant may have against the members, officials or employees of the Authority with respect to any Default or breach by Authority or for any amount which may become due to Consultant or Consultant’s successors, or any obligations under the terms of this Agreement. Consultant makes such release with the full knowledge of Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
10 “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.”
9.6 Controlling Law . This Agreement shall be governed by and construed in accordance with the laws of the State of California.
9.7 Time of the Essence. Time is hereby expressly declared to be the essence of this Agreement and of each and every term, covenant and condition hereof which relates to a date or a period of time.
9.8 Remedies Cumulative. The remedies given to Authority and Consultant herein shall be cumulative and are given without impairing any other rights given Authority or Consultant by statute or law now existing or hereafter enacted and the exercise on any one (1) remedy by Authority or Consultant shall not exclude the exercise of any other remedy.
9.9 Effect of Invalidity. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provision s to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
9.10 Successors and Assigns . This Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the successors and assigns of Authority and to the permitted successors and assigns of Consultant, and al l references to “ Authority” or “Consultant” shall be deemed to refer to and include all permitted successors and assigns of such Party.
9.11 Entire Agreement . This Agreement and the exhibits hereto contain the entire agreement of the Authority and the Consultant with respect to the matters covered hereby, and no agreement, statement or promise made by either Authority or Consultant which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any s uch matter shall be effective for any purpose. No provision of this Agreement may be amended, modified or added except by an agreement in writing signed by Authority and Consultant.
9.12 Authority. Each individual executing this Agreement on behalf of a corp oration, nonprofit corporation, partnership or other entity or organization, represents and warrants the he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms.
Consultant shall, at Authority’s request, deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.
11 9.13 Conflicts of Interest.
9.13.1 No member, official or employee of the Authority shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affect his or her perso nal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
9.13.2 Consultant represents that neither it nor any of its officers, partners or employees has a financial interest, as defin ed in section 87103 of the Government Code, in the subject matter of this Agreement other than the right to receive payment from Authority services rendered.
9.13.3 Consultant agrees that it shall not make, participate in making, nor in any way attempt to use i ts position as consultant to influence any decision of Authority in which Consultant knows, or has reason to know, that any of its officers, partners or employees has a financial interest as defined in Section 87103 of the Government Code.
9.13.4 Consultant warrants that neither Consultant nor any of its officers, partners or employees, has any financial interest in any real property, building or structure within 2,500 feet of the location of any project or assignment to which this Agreement may apply in the City of Anaheim. Consultant agrees to disclose to Authority any financial interest in such property as may be acquired by its officers, partners or employees during the term of this Agreement.
9.13.5 In conformity with the conflict of interest code of Authority, Consultant or, if Consultant is a firm or corporation, each individual who will be performing work under this Agreement shall complete, under penalty of perjury, a Statement of Economic Inter ests (From 700) and all required attachments and shall provide the originals thereof to the City Clerk. Copies of those completed forms and attachments shall be public records of Authority, to be kept and disclosed at the discretion of Authority and according to law. Consultant and individuals who will be performing work under this Agreement shall disclose pursuant to the broadest disclosure category unless the City Manager (or his or her designee) makes a written determination that the foregoing should b e more limited. Such written determination should be made in the manner required by the Authority's Conflict of Interest Code.
9.14 Time for Acceptance of Agreement by Authority. This Agreement, when executed by Consultant and delivered to Authority, must be authorized, executed and delivered by the Authority on or before forty-five (45) days after the execution and delivery by Consultant or this Agreement shall be void, except to the extent that Consultant and Authority shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement.
9.15 Conflicts or Inconsistencies . It is further expressly agreed by and between the parties hereto that, should there be any conflict between the terms of this Agreement and a ny of the exhibits or attachments hereto, this Agreement shall control and nothing herein shall be considered as an acceptance of the said terms of said exhibits or attachments conflicting herewith.
SIGNATURES BEGIN ON NEXT PAGE
12 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE RESPECTIVE DATES SET FORTH BELOW.
Dated:
"AUTHORITY"
ANAHEIM HOUSING AUTHORITY,
a public body, corporate and politic
By:
Grace Ruiz-Stepter
Executive Director
ATTEST:
THERESA BASS, SECRETARY OF THE
ANAHEIM HOUSING AUTHORITY
By:
APPROVED AS TO FORM:
CITY ATTORNEY
By:
Ryan O. Hodge
Deputy City Attorney
Dated:
"CONSULTANT"
Overland, Pacific & Cutler, LLC, a
Delaware limited liability company
By:
Jamie Lupo
Senior Vice President
147615
ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the ide ntity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
)
County of )
On ________________, before me,
date here insert name and title of the officer
personally appeared
here insert name(s) of signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/ies, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
I certify under PENALTY OF PERJUR Y under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
(Signature) (Seal)
Exhibit A
EXHIBIT A
DESCRIPTION OF SERVICES
Relocation Plan
Consultant’s relocation team will carefully prepar e a comprehensive Relocation Plan in accordance with the Authority’s procedures. A relocation plan will determine the level of service needed for the relocation assistance activities. Consultant’s relocation plan preparation process begins with Consultant’s staff interviewing all potentially affected occupants to determine their household income, household size, housing needs, special needs and to collect other pertinent household information; or for business occupants their replacement site requirements, special permits or utility requirements, franchise restrictions and the like. Consultant will identify the project’s funding sources and the applicable federal and/or state relocation program rules and regulations to be followed.
Consultant will research the marketplace for available, comparable, replacement units and compile statistics on availability. Consultant will prepare a detailed description of the relocation advisory services program procedures in accordance with applicable relocation laws, ordinances and practices for locating and referring eligible persons to comparable replacement units and available commercial industrial sites for non-residential occupants. Furthermore, a plan for any last resort housing which may be required will be created, if needed.
The Plan will note any risks to schedule or budget such as “long lead” relocation items or the relocation of lower income residential displacees and/or complex businesses.
Consultant will calculate potential relocation project costs related to r esidential and/or non-residential displacements. Consultant will then present the d raft relocation plan to the Authority. Consultant will make any needed revisions requested by the Authority and prepare a final document. Planning early on, and as thoroughly as possible, is crucial to a project with many moving parts. Consultant will provide continuous communication with the Authority, funding sources, and the residents or businesses, to ensure that the residents and businesses feel secure with the proposed process and that the Authority is prepared for the elements of, and costs associated with, the relocation process. Consultant will also make sure the Authority is in early compliance with funding source requirements identified prior to, and during, the planning process.
For both residential and business relocations, Consultant will provide all required vacancy notices and keep the Authority, other consultants and stakeholders apprised of the progress made towards vacating each parcel. Consultant will calcu late claims with full supporting documentation and submit them to t he Authority. The goal will be to vacate parcels within 90 days of the offer to purchase and providing the NOE.
Consultant will estimate the cost of residential and non-residential benefits to assist the Authority in budgeting for benefit payments. After the approval of the Relocation Plan, Consultant will meet with each residential or business displacee and provide a relocation brochure approved by the Authority and a Notice of Eligibility (NOE). All the required informational statements, notices and claim forms that Consultant will present to displacees have already been
Exhibit A
translated into Spanish. And, as with Consultant’s acquisition team, Consultant’s relocation agents routinely conduct business in Spanish and other languages as needed.
Consultant will explain the relocation process and how reimbursement for actual, reasonable, necessary, and eligible expenses will occur. All displacees will receive advisory assistance and referrals to rep lacement sites. In addition, Consultant will provide all required vacancy notices and keep the Authority , other consultants and stakeholders apprised of the progress made towards vacating each parcel. Consultant will calculate claims with full supporting documentation and submit them to the Authority . Consultant will also alert the Authority of all requests for advance payments needed to reduce hardships and any special needs of displacees.
The goal will be to vacate parcels within 90 days of the offer to purchase and providing the NOE.
Once the Consultant ’s relocation agent confirms that the contact letter was provided to the owner or tenant (when the offer was made), the relocation agent will begin to provide advisory services to any of the potential displacees. Consultant will meet with the occupant in person to explain the relocation process, the likely timeline, and the claims -reimbursement policies of the Authority.
Before a final eligibility determination can be made, Consultant must gather additional information such as documentation to verify current rental/mortgage payments, tenancy, household income, and spe cial needs. At the same time, Consultant will deliver specific information regarding the relocation program as part of our “personal presence” as discussed above. Consultant’s staff will take the time to go through all of the information provided and in essence, “teach” the relocation program to the potential displacee.
Residential Relocation Services
All displacees will receive advisory assistance referrals to replacement sites.
Consultant will explain the relocation process and how reimbursement for actual, reasonable, necessary, and eligible expenses will occur, including the steps necessary to document and verify their entitlement. Consultant’s relocation team will search for replacement housing that meets the family size and the work/school/church needs that are within their financial means. Once a replacement site has been identified and secured, Consultant will help the displacee obtain moving bids from eligible, licensed and qualified moving contractors that we have fully vetted.
Consultant’s agents will conduct a walk- through of the vacated property to ensure that it has been left in a swept – clean state and that no personal items have been left behind, particularly furnishings or hazardous waste that will require the Authority to dispose of these items. Also, unless negotiated ahead of time, Consultant will inspect to make sure built-in appliances or other attached items that were part of the appraised value/purchase price have not been removed.
Business Relocation Services
As with residential relocations, Consultant will explain the relocation process and how reimbursement for actual, reasonable, necessary, and eligible expenses will occur, including the steps necessary to document and verify their eligibility for reimbursement. Business owners will be given all required documentation needed to submit a claim, along with an explanation for each.
Consultant’s search for a replacement s ite will consider all factors that will minimize their loss of patronage, zoning and permitting restrictions, specific licensing territories (manufacturers
Exhibit A
sometimes license or assign a particular retail or distribution area to a retailer to restrict competition), franchise restrictions, access issues, etc.
Consultant will work with Furniture, Fixture and Equipment (FF&E) appraisers to prepare an inventory of Personal Property, making sure the business owner and one of our agents, if requested or prudent, accompany the appraiser during his on-site evaluation. If necessary, Consultant will assist the Authority with the sale or auction of purchased FF&E items. Consultant will help the business displacee obtain moving bids from eligible, licensed and qualified moving contractors that are fully vetted by Consultant. Consultant’s agents will supervise the actual move to ensure that no Authority-purchased items are moved and/or conduct a final walk -through of the property to ensure the same and that no furnishings and/or hazardous waste has been left behind.
Additional Services
Consultant will be available to meet with the Authority upon request, including meetings on updated schedules, and other reports as necessary. Consultant will also provide the Authority with status reports as required to update the Authority and/or its consultants on project status. In addition to status reports, Consultant will establish expectations for other formal and informal communications.
Exhibit B
EXHIBIT B
SCHEDULE OF COMPENSATION
Management & Implementation Hourly Rates
Senior Program Manager/ Senior Vice President $250.00
Program Manager $200.00
Senior Project Manager/ Quality Manager $165.00
Project Manager/ Project Controls Manager $150.00
Senior Agent I Senior Analyst/ Project Controls Analyst $135.00 Agent I Analyst/ Senior Land Specialist $120.00
Relocation Specialist/ Land Specialist $105.00
Utility Coordination
Senior Utility Manager $200.00
Utility Manager $165.00
Senior Utility Coordinator $150.00
Utility Coordinator $135.00
Right of Way Engineering
Project Engineer (PE) $225.00
Survey Manager (PLS) $200.00
Senior ROW Engineering / Survey Analyst $150.00
GIS / CADD Analyst $150.00
Property Management/Property Services
Property Management Supervisor $165.00
Property Manager $135.00
Property Services Supervisor $135.00
Community Liaison $120.00
Project Support/Administrative
Project Controls Manager $150.00
Project Controls Analyst $135.00
Administrative Assistant $90.00
Exhibit B
Billing Terms and Conditions
Unless superseded by client -generated Billing Terms in an Agreement execut ed by Consultant, the following terms shall apply to this Scope of Services.
Consultant considers local travel/mileage, photocopying, first class postage, telephone, facsimile, and mobile communication charges a normal part of doing business and such costs are included in the stated hourly rates. Out-of-pocket expenses including pre-approved travel and lodging, outside exhibit preparation , requested overnight courier or regis tered and/or certified mail (return receipt requested) charges, and specialty reproduction (unless otherwise specified) are in addition to the contract amount and will be charged at cost plus ten percent (+10%) for administration, coordination, and handlin g. Subcontracted services, other than those listed above, will be invoiced at cost plus ten percent (+10%).
In the event Consultant is required to perform any act in relation to litigation arising out of any project with the Client (for example , expert consulting, responding to a complaint, or proceeding with discovery and trial), such services are not part of this contract, nor are they part of our normal fees . If required, these types of services will be invoiced at two (2) times the regular hourly rates.
In the event this contract extends twelve (12) months beyond the initial date of execution, the hourly rates and any remaining amount in the contract shall be adjusted upwardly by five percent (5%) per annum, compounded annually, on the anniversary date of this contract.
Written communication services in other languages would be an additional cost and would be billed separately based on quoted hourly rates by independent translation services. Verbal communication in Spanish, if necessary, will be included at no additional charge.
Consultant will submit monthly invoices for the professional and trade services rendered based on the hourly rate schedule provided above. The Authority shall promptly pay the uncontested amount due within no more than thirty (30) days after receipt of invoice.