AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this _day of - 2022, ("Effective Date") by and between the City of Merced, a California Charter Municipal Corporation, whose address of record is 678 West 18th Street, Merced, California 95340, (hereinafter referred to as "City") and Precision Civil Engineering, Inc., a California corporation (hereinafter referred to as "Consultant"), whose address of record is 1234 O Street, Fresno, CA 93721, (hereinafter collectively referred to as "Parties").
WHEREAS, City is undertaking a project to create a Tiny Homes Ordinance and various zoning code updates in collaboration with the City, and WHEREAS, Consultant represents that it possesses the professional skills to provide planning and consulting services in connection with said project.
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants hereinafter recited, hereby agree as follows:
1. SCOPE OF SERVICES. The Consultant shall furnish the following services: Consultant shall provide the planning and consulting services described in Exhibit "A" ("Scope of Services") attached hereto and incorporated by reference.
A. No additional services shall be performed by Consultant unless first approved in advance in writing by the City, stating the dollar value of the services, the method of payment, and any adjustment in contract time outlined in Exhibit "B."
B. All such services are to be coordinated with the City and the results of the work shall be monitored by the Director of Development Services or designee. However, the means by which the work and services are accomplished shall be the sole responsibility of the Consultant.
2. TIME OF PERFORMANCE. All of the work outlined in the Scope of Services shall be completed in accordance with the Project Schedule outlined in Exhibit "B" attached hereto and incorporated herein by reference.
A. Solely by mutual agreement and written addendum to this Agreement, the Parties may change the requirements outlined in said Project Schedule.
TERM OF AGREEMENT. The term of this Agreement shall commence upon the Effective Date first above written and end on September 30, 2023 ("Term").
X: \Agreements Housing\2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx COMPENSATION. Payment by the City to the Consultant for actual services rendered under this Agreement shall be made upon presentation of an invoice detailing services performed under the Scope of Services, in accordance with the fee schedule set forth in Exhibit "C" attached hereto and incorporated herein by reference.
The Consultant agrees to provide all services required under the Scope of Services in Exhibit "A" within the compensation amount set forth in Exhibit "C." For Consultant's services rendered under this Agreement, City shall pay the Consultant a fee not to exceed the sum of $93,200.00
5. METHOD OF PAYMENT. Compensation to Consultant shall be paid by the City after submission by Consultant of an invoice delineating the services performed.
6. RECORDS. It is understood and agreed that all plans, studies, specifications, data magnetically or otherwise recorded on computer or computer diskettes, records, files, reports, etc., in possession of the Consultant relating to the matters covered by this Agreement shall be the sole property of the City, and Consultant hereby agrees to deliver the same to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials including, but not limited to those set forth hereinabove, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
7. CONSULTANT'S BOOKS AND RECORDS. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the City. All such records shall be prepared in accordance with generally accepted accounting procedures.
8. INDEPENDENT CONTRACTOR. The Parties agree that Consultant is free from the control and direction of the City in connection with Consultant's performance of the services. It is expressly understood that Consultant is an independent contractor and that Consultant's employees shall not be employees of or have any contractual relationship with the City. Consultant shall be responsible for the payment of all federal, state, and local taxes, workers' compensation insurance, and unemployment insurance including, social security and income taxes with respect to Consultant and Consultant's employees and otherwise in connection with this X: \Agreements\Housing\2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 2 Agreement. Should Consultant desire any insurance protection, the Consultant is to acquire the same at its sole expense.
A. In the event Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS"') to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnity, protect, defend, and hold harmless the City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
9. INDEMNITY. Consultant shall indemnify, protect, defend (with legal counsel selected by the City), save and hold City, its City Council, officers, employees, and agents, harmless from any and all claims or causes of action for death or injury to persons, or damage to property resulting from intentional or negligent acts, errors, or omissions of Consultant or Consultant's officers, employees, volunteers, and agents during performance of this Agreement; Consultant shall indemnify, protect, defend (with counsel selected by the City) save and hold City, its City Council, officers, employees and agents harmless from any and claims or causes of action for any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct, negligent acts, or omissions of Consultant or its employees, subcontractors, or agents, or by the quality or character of Consultant's work, or resulting from the negligence of the City, its officers, employees, volunteers and agents, except for loss caused by the sole negligence or willful misconduct of the City or its officers, employees, volunteers or agents.
A. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause.
B. This Section shall survive the termination of this Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply.
C. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration
X: Agreements\Housing\2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 3 10. INSURANCE. During the Term of this Agreement, Consultant shall maintain in full force and effect at its own cost and expense, the following insurance coverage:
A. Workers' Compensation Insurance. Full workers' compensation insurance shall be provided with a limit of at least One Hundred Thousand Dollars ($100,000) for any one person and as required by law, including Employer's Liability limits of $1,000,000.00 per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City.
B. General Liability.
(i) Consultant shall obtain and keep in full force and effect general liability coverage at least as broad as ISO commercial general liability coverage occurrence Form CG 0001.
(ii) Consultant shall maintain limits of no less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage.
(ili) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respect to liability arising out of work or operations performed by or on behalf of the Consultant.
(iv) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub- contractors, and that any other insurance or self-insurance maintained by City or other named insureds shall be excess and non-contributory.
(V) Consultant shall maintain its commercial general liability coverage for three (3) years after completion of the work and shall add an additional insured endorsement form acceptable to the City naming the City of Merced, its officers, employees, agents, and volunteers for each year thereafter for at least three (3) years after completion of the work. Copies of the annual renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal.
X: \Agreements\Housing\2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 4 C. Automobile Insurance.
(i) Consultant shall obtain and keep in full force and effect an automobile policy of at least One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
(ii) The City, its officers, employees, volunteers, and agents are to be named as additional insureds under the policy, as respect to automobiles owned, leased, hired, or borrowed by the Consultant. (ill) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub- contractors, and that any other insurance or self-insurance maintained by City or other named insureds shall be excess and non-contributory.
D. Professional Liability Insurance. Consultant shall carry professional liability insurance appropriate to Consultant's profession in the minimum amount of One Million Dollars ($1,000,000). Architects and engineers' coverage is to be endorsed to include contractual liability.
E. Qualifications of Insurer. The insurance shall be provided by an acceptable insurance provider, as determined by City, which satisfies all of the following minimum requirements:
(i) An insurance carrier admitted to do business in California and maintaining an agent for service of process within this State; and, (ii) An insurance carrier with a current A.M. Best Rating of A: VII or better (except for workers' compensation provided through the California State Compensation Fund).
F. Certificate of Insurance. Consultant shall complete and file with the City, prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing coverage, as set forth above, and which shall provide that no cancellation or expiration by the insurance company will be made during the term of this Agreement, without thirty (30) days written notice to City prior to the effective date of such cancellation—including cancellation for nonpayment of premium. In addition to any other remedies City may have, City reserves the right to withhold payment if Consultant's insurance policies are not current.
X: \Agreements\Housing|2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 5 11. PREVAILING WAGES.
A. Labor Code Compliance. If the work performed under this Agreement falls within Labor Code Section 1720(a)(1) definition of a "public works" Consultant agrees to comply with all of the applicable provisions of the Labor Code including, those provisions requiring the payment of not less than the general prevailing rate of wages. Consultant further agrees to the penalties and forfeitures provided in said Code in the event a violation of any of the provisions occurs in the execution of this Agreement.
B. These wage rate determinations are made a specific part of this Agreement by reference pursuant to Labor Code Section 1773.2. General Prevailing Wage Rate Determinations may be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov/.
C. After award of the Agreement, and prior to commencing work, all applicable General Prevailing Wage Rate Determinations, if applicable, are to be obtained by Consultant from the Department of Industrial Relations. These wage rate determinations are to be posted by Consultant at the job site in accordance with Section 1773.2 of the California Labor Code.
D. Consultant agrees to include prevailing wage requirements, if applicable, in all subcontracts when the work to be performed by the subcontractor under this Agreement is a "public works" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771.
12. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Consultant and is based upon a determination of Consultant's unique personal competence and experience and upon Consultant's specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City. Subject to the foregoing, this Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the respective parties.
13. TERMINATION FOR CONVENIENCE OF CITY. The City may
terminate this Agreement any time by mailing a notice in writing to Consultant that the Agreement is terminated. Upon receipt of the notice, said Agreement shall then be deemed terminated and no further work shall be performed by Consultant. If the Agreement is so terminated, the Consultant shall be paid for that percentage of the phase of work actually completed, as determined by the City, based on a pro rata portion of the compensation for said phase satisfactorily completed at the time the notice of termination is received.
X: \Agreements\Housing|2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 6 14. CONFORMANCE TO APPLICABLE LAWS. Consultant shall comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances.
A. No discrimination shall be made by Consultant in the employment of persons to work under this contract because of race, color, national origin, age, ancestry, disability, sex, sexual orientation, or religion of such person.
B. Consultant hereby agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. 1101 et seq.), as amended; and in connection therewith, Consultant shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any agency or instrumentality of the federal or state government, including the courts, impose sanctions against the City for such use of unauthorized aliens, Consultant hereby agrees to, and shall, reimburse City for the complete cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith.
15. WAIVER. In the event that either City or Consultant shall at any time waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other covenant, condition or obligation. Waiver shall not be deemed effective until and unless signed by the waiving party.
16. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT AND
EXHIBITS. In the event of any contradiction or inconsistency between any attached documents) or exhibits) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
A. Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the City are not binding upon the City unless specifically agreed to in writing, and initialed by the authorized City representative, as to each additional contractual term or condition.
17. AMBIGUITIES. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, any rule of law, including, but not limited to, Section 1654 of the Civil Code of California, or any other statutes, legal decisions, or common-law principles of similar effect, that X: \Agreements\Housing\2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 7 would require interpretation of any ambiguities in this Agreement against the party that drafted this Agreement is of no application and is hereby expressly waived by the Parties.
18. VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Merced.
19. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both Parties hereto.
20. INTEGRATION. This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all previous and/or contemporaneous understanding or agreement between the Parties with respect to all or any part of the subject matter hereof.
21. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the parties hereto warrant and represent that they have the legal authority to execute this Agreement on behalf of their entity and have the authority to bind their party to the performance of its obligations hereunder.
22. COUNTERPARTS. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterparts executed by the other parties hereto are in the physical possession of the party or parties seeking enforcement thereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first above written.
CITY OF MERCED
A California Charter Municipal
Corporation
BY:
City Manager
X: \Agreements\Housing|2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 8 ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
BY:_
Assistant/Deputy City Clerk
APPROVED AS TO FORM:
ACCOUNT DATA:
BY:
Verified by Finance Officer
{Signatures continued on next page}
X: \Agreements\Housing\2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.docx 9 CONSULTANT
PRECISION CIVIL ENGINEERING,
INC., A California Corporation
BY:
(Signature)
(Typed Name)
Its:
(Title)
BY:_
(Signature)
(Typed Name)
Its:
(Title)
Taxpayer I.D. No.
ADDRESS: 1234 O Street
Fresno, CA 93721
TELEPHONE: 559-449-4500
FAX: 559-449-4515
E-MAIL: [email protected]
X: \Agreements\Housing|2022\PSA - Precision Civil Eng Re Tiny Homes Ordinance v2.doex 10 •
Tiny Homes Ordinance and Zoning Updates
Scope of Services
A. Project Management
a. Project Kick-Off Meeting: Meet with staff project team to identify project milestones, refine the scope of work, confirm timeline, clarify specific roles and responsibilities and identify project resources. This should be an in-person meeting. b. Management Tools: Identify tools and methods that will be used to keep the project moving on time and within budget. Consultant should anticipate meetings with the staff project team throughout the project, including regular conference calls and in person or virtual group meetings at key milestones.
B. Meetings
a. Plan for monthly Staff Meetings
i. Review concepts and ideas for Tiny Homes Ordinance
il. Review and discuss updates to the Zoning Code changes with City Planners and Project Team
b. The City expects that most meetings can be held virtually via Teams or Zoom. c. Planning Commission meeting
d. City Council meeting (s) - possibly two
C. Prepare Presentation for the Planning Commission and City Council for both the Tiny Home Ordinance and other Zoning Ordinance Amendments.
a. Prepare Draft Ordinances and staff reports to Planning Commission b. City staff will prepare and distribute the required public hearing notices c. Prepare Draft Ordinances and staff reports to City Council D. Prepare a memorandum or concept paper which takes into consideration these concepts and provides recommendations or suggestions for potential updates to other sections including Planned Development (PD), Urban Residential Overlay (/UR), and Small Lot Single Family Homes.
E. The City is seeking a peer review of our current SB 35 application process and recommendations.
F. Create a reproduceable handout or flyer introducing the Tiny Homes Ordnance. This handout will also be published on the City website.
EXHIBIT A
Tiny Homes Ordinance and Zoning Updates
Project Schedule
Project completion in approximately 4 to 9 months, starting with the contract award in October 2022.
The consultant is welcome to recommend adjustments to the timeline, where appropriate. The project should be accomplished in phases. Phase 1 completed at two months into the project, would be the Tiny Homes Ordinance. Phase II, the zoning code updates to follow, with the entire project completed 9 months from the project award date. The project must be completed with final invoices sent to the City no later than August 2023.
Phase Time Activities
2 Months Tiny Homes Ordinance
3 - 6 Months Zoning Codes Updates
Presentations to Planning
Commission and City
III 9 Months Council
EXHIBIT B
Tiny Homes Ordinance and Zoning Updates
Fee Schedule
Projected Hours
Task 1. Project Management 4,700.00
Bonique Emerson 5
Kelsey George 1
Jenna Chilingerian 25
Shin Tu 1
total hours: 32
Task 2. Meetings 10,900.00
Bonique Emerson 17
Kelsey George 17
Jenna Chilingerian 22
Shin Tu 10
total hours: 66
Task 3. Public Hearing Deliverables 56,500.00
Bonique Emerson 110
Kelsey George 110
Jenna Chilingerian 80
Shin Tu 20
total hours: 320
Task 4. PD/UR/Small Lot Single-Family Homes Concept 8,900.00 Bonique Emerson 10
Kelsey George 20
Jenna Chilingerian 20
Shin Tu 4
total hours: 54
Task 5. Peer Review of SB 35 Application Process 9,300.00 Bonique Emerson 20
Kelsey George 20
Jenna Chilingerian 10
Shin Tu 1.Includes 10% Contingency.
total hours: 50 Rounded lo the Nearest whole
Task 6. Tiny Homes Ordinance Handout 2,900.00 Number, and Not to Exceed
2. Includes Direct Costs of for
Bonique Emerson 2
travel to in-person meetings
Kelsey George and hearings.
Jenna Chilingerian 4
Shin Tu 16 TOTAL NOT TO EXCEED
total hours: 22 $93,200.00
EXHIBIT C