AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this __ day of
______ , 2023, 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 refen-ed to as "City") and Mogavero Architects, a California Corporation, whose address of record is 1331 T Street, Sacramento, CA 95811, (hereinafter refen-ed to as "Consultant").
WHEREAS, City is undertaking a project to conduct a Downtown Housing Feasibility Study; and,
WHEREAS, Consultant represents that it possesses the professional skills to provide Downtown Housing Feasibility Study 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 Downtown Housing Feasibility Study services described in Exhibit "A" attached hereto.
No additional services shall be performed by Consultant unless 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. All such services are to be coordinated with 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 is 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 Schedule outlined in Exhibit "B" attached hereto and incorporated herein by reference. By mutual agreement and written addendum to this Agreement, the City and the Consultant may change the requirements in said Schedule.
3. TERM OF AGREEMENT. The term of this Agreement shall
commence upon the day first above written and end when the project is completed to the satisfaction of the City.
K:\MON_DOCS\03360\00 l \AGT\M0 196409. DOCX
1 4. 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 Consultant the not to exceed sum of Sixty-One Thousand Eight Hundred Dollars and Zero Cents ($61,800.00).
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 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.
8. INDEPENDENT CONTRACTOR. It is expressly understood that Consultant is an independent contractor and that its employees shall not be employees of or have any contractual relationship with the City. Consultant shall be responsible for the payment of all taxes, workers' compensation insurance and unemployment insurance. Should Consultant desire any insurance protection, the Consultant is to acquire same at its expense.
K:\MON_DOCS\03360\00I\AGT\M0196409.DOCX
2 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 indemnify, 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.
A. Indemnity for Professional Liability. When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend, and hold harmless City and any and all of its officials, employees and agents from and against any and all losses, liabilities, damages, costs, and expenses, including legal counsel's fees and costs but only to the extent the Consultant (and its Subconsultants), are responsible for such damages, liabilities and costs on a comparative basis of fault between the Consultant (and its Subconsultants) and the City in the performance of professional services under this agreement.
B. Indemnity for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel's fees and costs, court costs, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or City for which Consultant is legally liable, including, but not limited to officers, agents, employees, or subcontractors of Consultant.
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:
K:\MON_DOCS\03360\00I\AGT\M0I96409.DOCX
3 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 One Million Dollars ($1,000,000.00) per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City.
II
II
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.
(iii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects 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.
K:\MON_DOCS\03360\00I\AGT\M0I96409.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 respects automobiles owned, leased, hired or borrowed by the
Consultant.
(iii) 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 cun-ent 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 K:\MON _DOCS\033601001 IAGT\MO 196409.DOCX
5 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.
11. PREVAILING WAGES.
A. Labor Code Compliance. If the work performed under this Agreement falls within Labor Code Section 1720(a)(l) definition of a "public works" the 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. The 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 the Consultant from the Department of Industrial Relations. Theses wage rate determinations are to be posted by the 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 l 720(a)(l) 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 its unique personal competence and experience and upon its 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.
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. Said Agreement shall then be deemed terminated, K:\MON_DOCS\03360\001\AGT\M0196409.DOCX
6 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, based on a pro rata portion of the compensation for said phase satisfactorily completed at the time the notice of termination is received.
14. CONFORMANCE TO APPLICABLE LAWS. Consultant shall
comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances. No discrimination shall be made by Consultant in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
Consultant hereby promises and 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, 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 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 or times 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 document(s) or exhibit(s) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
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.
K:\MON_DOCS\03360\001\AGT\M0196409.DOCX
7 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 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.
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 I
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 warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of their entity and has/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.
(Signatures on next page)
K:\MON_DOCS\03360\00I\AGT\M0I96409.DOCX
8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first above written.
ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
BY: --------------
Assistant/Deputy City Clerk
APPROVED AS TO FORM:
L . Oig1taUy signe� by: Laune
au r I e Avedislan-Fav,ni
ON: '1N = Laurie Avedisian-Favini
Aved -15•1 an-
em�I = [email protected]
C =
,.
us O = Lozano Smrth
BY: Favini
Dae: 2023.03.1411:222 3-07"003/14/23
City Attorney Date
ACCOUNT DATA:
BY: --------------
Verified by Finance Officer
(Signatures continued on next page)
K:\MON _DOCS\03360\00 I \AGT\M0 196409.DOCX
CITY OF MERCED
A California Charter Municipal
Corporation
BY:
City Manager
9 K:\MON_DOCS\03360\001\AOT\M0196409.DOCX
CONSULTANT
MOGA VERO ARCIDTECTS, a
California Corporation
BY: __________ _
(Signature)
David Moaavero
(Typed Name)
rts: CEO
(Title)
BY: __________ _
(Signature)
(Typed Name)
Its: -----------
(Title)
Taxpayer I.D. No. 68-0235788
ADDRESS: 1331 T Street
Sacramento, CA 95811
TELEPHONE: 916.443.1033
FAX:_---,----....,,..,...----
E-MAIL: [email protected]
10 SCOPE OF SERVICES EXHIBIT A
The following services (listed under A-C) will be the responsibility of the Consultant. The scope of work includes, but may not be limited to, the following tasks:
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. To review locations, site concepts and coordinate ideas ii. Review and discuss any entitlement changes needed with City Planners and Project Team
b. The City expects that most meetings can be held virtually via Teams or Zoom. c. Final project presentation meeting in person.
C. Review, Develop, Prepare, and Present a Report to City staff a. Review existing City Pro-Housing policies, RHNA Production Plan, PFFP Policy and Draft In-Fill Study to gain an understanding of the community needs, background, and use these policies to benefit the concept project b. Make recommendations on the best options for development of the map areas (included)
c. Develop a conceptual site plan including drawings - elevations, maintain existing parking, include a breakdown of units, proposed income level and space for other uses
d. Develop a financial Pro-Forma, to include construction budget and 15 years of future operational funding needs
e. Make a recommendation on funding options
f. The Final Downtown Housing Feasibility Study should report on all aspects of the project, including pre-entitlements, concept site plan, designs, drawings, recommendations, and pro-forma.
g. The work should be project ready for future development.
TIME OF PERFORMANCE EXHIBIT B
Project Schedule/Timeline for Milestones & Deliverables The Project Time line sought by the City for this project is approximately four ( 4) months, starting with the contract award by early April 2023. The consultant is welcome to recommend adjustments to the timeline, where appropriate. The project must be completed with final invoices sent to the City no later than August 2023.
TASK # TASKS ESTIMATED FEE
1.0 Work Plan Review & Discussion $ 2,080
2.0 Information Gathering
2.1 Downtown Housing Needs Evaluation $ 1,260
2.2 Collection of Site Development Constraint Information $ 2,500
2.3 Review Scoring For Affordable Housing $ 820
2.4 Local Codes Analysis $ 1,680
2.5 Ground Floor Uses Evaluation $ 1,680
2.6 Parking for Transit Users $ 1,240
2.7 Review Site Information with Staff $ 840
3.0 Initial Analysis
3.1 Mass Studies $ 9,970
3.2 Development Investigation Fees $ 1,240
3.3 Financial Models $ 2,020
3.4 Review Site Recommendation with City Staff $ 2,900
4.0 Final Downtown Feasibility Study
4.1 Concept Architectural Plans $ 19,900
4.2 Financial Models $ 1,620
4.3 Document Aggregation $ 2,520
4.4 Review with City Staff $ 2,520
4.5 Presentations $ 7,010
TOTAL $ 61,800
FEE MATRIX
NOTES
1. It is not possible to precisely predict the number of hours needed for each task. It is possible to reasonably predict the overall effort.
2. The total fees quoted is a “not to exceed” estimate but the fees quoted for each task individually are not “not to exceed” numbers.
EXHIBIT C