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HomeMy WebLinkAboutR22720 - Kuniklo CorporationContract No. R22720 AGREEMENT FOR PROFESSIONAL SERVICES This AGREEMENT is made and entered into this 24t" day of March. 2006, ("Effective Date") by and between the PALM DESERT REDEVELOPMENT AGENCY ("Agency") and KUNIKLO CORPORATION, an Arizona corporation ("Consultant") (sometimes referred to individually or collectively as "Party' or "Parties"). WITNESSETH WHEREAS, Agency desires to retain Consultant as an independent contractor to perform certain technical and professional consulting services in connection with the Palm Villaae Apartments project, subject to the terms and conditions specified below, in the documents attached and incorporated herein, and applicable federal, state and local law. NOW, THEREFORE, in consideration of performance by the Parties of the mutual promises, covenants, and conditions herein contained, the Parties hereto agree as follows: 1. Consultant's Services. 1.1 Nature of Services. Consultant shall provide professional and technical services on a non-exclusive basis, as more particularly described in Section 3, below, and in Exhibit A, Scope of Services. 1.2 Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its direct supervision, and all personnel engaged in the work shall be qualified, and shall be authorized or permitted under state and local law to perform such services. 1.3 Standard of Performance. Consultant shall perform all services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to Agency. 1.4 Consultant Representative. For the purposes of this Agreement, the Consultant Representative shall be Patti Tellez ("Consultant Representative"). 1.5 Time of Commencement. The execution of this Agreement by the Parties does not constitute an authorization to proceed. A separate written Notice to Proceed shall be issued by the Agency Representative, and Consultant shall not commence work until receipt of such written Notice(s) to Proceed, as further set forth in Sections 2 and 3, below. 1.6 Time of Performance/Time is of the Essence. Consultant shall commence the services contemplated under this Agreement immediately upon receipt of a written Notice to Proceed from the Agency. Contract No. 422720 2. Services by Agency: 2.1 Aaencv Representative. For the purposes of this Agreement, the Agency Representative shall be Brvice Lvnn White, or such other person designated by the Agency's Executive Director ("Agency Representative"). 2.2 Provision of Data. All information, data, reports and records and maps as are existing and available from the Agency and necessary for the carryings out of the work outlined in Exhibit "A" hereof shall be furnished to Consultant without charge by Agency, and Agency shall cooperate in every way reasonable in the carrying out of the work without delay. 2.3 Proiect Budaet. The Agency shall provide a budget for the project that shall include contingencies for bidding, changes during construction, and other costs which are the responsibility of the Agency. 2.4 Tests and Inspection. The Agency shall furnish structural, mechanical, chemical, and other laboratory tests, inspections, and reports as required by law or the contract documents, provided however that the Consultant shall advise the Agency in advance of the necessity of such tests and inspections, and shall coordinate and cooperate with the testing and inspection agencies, if any, at no additional cost to the Agency. 3. Consultant's Scope of Work. Upon delivery by Agency to Consultant of a written Notice to Proceed, Consultant shall immediately commence work pursuant to this Agreement. Consultant's scope of work shall consist of the services in Exhibit A appended to this Agreement. 3.1 Reportina & Record Keeainq. To assist Agency in the performance of its planning, reporting, and financial administration obligations, Consultant shall, throughout the term of this Agreement, keep Agency reasonably informed of progress on work required under this Agreement, and of any problems or delays, anticipated or otherwise, associated with each aspect of the work. Consultant shall promptly respond to any request by Agency for information, progress reports, or documentation. Consultant shall maintain accurate records of all work performed for each Assignment under this Agreement, including but not limited to originals or copies, as applicable, of all deliverable documents described in Exhibit A. Upon the completion of work, and if requested by the Agency, Consultant shall deliver to Agency the originals of all renderings, models, or documentation produced, and, may retain copies of such documentation, at Consultant's election. 3.2 Compliance with Laws. Consultant shall at all times possess any and all licenses and permits necessary to provide the services herein, and shall comply with applicable federal, state and local laws, ordinances, codes and regulations in the performance of this Agreement, and with all applicable with any applicable City of Palm Desert policies and guidelines. 3.3 Confidentiality. Except as otherwise permitted or required by law, Consultant shall maintain as confidential and shall not disclose any and/or all information received in the course of performing pursuant to this Agreement. Consultant shall promptly inform the Agency in the event Consultant receives a subpoena or court order requiring disclosure of confidential information. 4.0 Not Used 5. Compensation. Agency shall pay Consultant for the Services provided under this Agreement on the following basis. 5.1 Not -to -Exceed Fee: Agency shall pay to Consultant a total amount not to exceed $24.900 for the basic services described in Exhibit A. Payment shall be made on a monthly basis as follows: $6,000 for first month, which includes proposed services, travel, and high level customer service to achieve backlog remediation; $3,000 per month, thereafter until Agency terminates services of Consultant. The not -to - exceed fee shall not be exceeded without written agreement between the parties. 5.2 Additional Services: Agency shall not be obligated to compensate Consultant for additional services performed without advance authorization from the Agency Representative. 5.3 Reimbursable Expenses: Normal reimbursable expenses are included as part of Consultant's compensation. Extraordinary expenses may be reimbursable with advance authorization from Agency Representative from Agency to Consultant of actual costs plus ten percent (10%). 5.4 Extraordinary Expenses/Costs. No claims for additional services, expenses or costs incurred by Consultant will be allowed unless such additional services, expenses or costs are authorized by Agency in writing prior to the performance or incurrence of such services, expenses or costs. Any additional services, expenses or costs authorized by Agency shall be compensated at rates mutually agreed upon by the Parties in writing. 6. Method of Payment. 6.1 Invoices. Consultant shall submit to Agency invoices each month for all services, if any, completed, and all expenses or costs incurred pursuant to this Agreement during the preceding month. The invoices shall describe the services rendered during the period and any milestone achievements. Agency shall review such invoices and notify Consultant in writing within fifteen (15) calendar days of any disputed amounts. 6.2 Pavment. Agency shall pay all undisputed portions of the invoice within thirty (30) calendar days after receipt of the invoice up to the maximum amounts set forth in Section 5. 6.3 Audit of Records. At any time during regular working hours, all records, invoices, time cards, cost control sheets and other records maintained by Consultant shall be available for review and audit by the Agency. 3 7. Ownership of Work Product. 7.1 Prooerty of Aaencv. All documents including but not limited to plans, bids, proposals, correspondence, permits, certificates, contracts, change orders, invoices, receipts, reports, analyses or other written material developed or obtained by Consultant in the performance of this Agreement, including any and all intellectual property rights arising therefrom ("Work Product"), shall be and remain the property of Agency without restriction or limitation upon its use or dissemination by Agency. Promptly upon the completion of each Assignment, or at any other time upon reasonable notice to Consultant by Agency, Consultant shall deliver all Work Product to Agency. 7.2 Re -Use of Work Product. Agency and Consultant agree that all documents, other than invoices, prepared by Consultant pursuant to this Agreement shall be used exclusively for the subject project, and shall not be used for any other work without the mutual agreement of the Parties. Such material shall not be the subject of a copyright application by Consultant. In the event Consultant permits the re -use or other use of such Work Product, Agency shall require the party using them to indemnify and hold harmless Agency and Consultant regarding such re -use or other use, and Agency shall require the party using them to eliminate any and all references to Consultant from such Work Product. In the event Agency re -uses such Work Product on any project other than the project for which they were prepared, such re -use shall be at the sole risk of Agency unless Agency compensates Consultant for such reuse. 8. Conflict of Interest/Prohibited Conduct and Interests 8.1 Conflict of Interest. Consultant and its officers, employees, associates and sub consultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this Agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant shall retain the right to perform similar services for other clients, but Consultant and its officers, employees, associates and sub consultants shall not, without the prior written approval of the Agency Executive Director, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or sub consultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute. 8.2 No Solicitation. Consultant, on behalf of itself and its officers, employees, agents and representatives, warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Agency shall have the right to terminate this Agreement without notice or liability, or in its discretion to deduct from the contract price or 0 consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 8.3 No Financial Interest - Agency. No officer, member or employee of Agency during his or her tenure or one year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. The Parties hereto covenant and agree that to their knowledge no member of the Agency Board, or officer or employee of Agency, has any interest, whether contractual, non -contractual, financial or otherwise, in this Agreement, or the subject matter thereof, nor any business or financial relationship with Consultant, and that if any such interest comes to the knowledge of either Party at any time a full and complete disclosure of all such information will be made in writing to the other Party or Parties, even if such interest would not be considered a conflict of interest under applicable laws. 8.4 No Financial Interest — Consultant. Consultant hereby covenants, on behalf of itself, and its officers, employees, agents and representatives, that at_ the time of executing this Agreement it has no interest, and that it shall not acquire any interest in the future, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed pursuant to this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by Consultant. At no time during the term of this Agreement, and for one (1) year thereafter, shall Consultant or anyone acting on Consultant's behalf, accept anything of value from any contractor or subcontractor performing services in connection with this project. 9. Indemnification. Other than in the performance of professional services and to the fullest extent permitted by law, Consultant shall indemnify, defend and hold the City, Agency, and City's and Agency's elected officials, officers, employees, agents and volunteers free and harmless from and against all tort liability, including liability for claims, suits, actions, expenses or costs of any kind, whether actual, alleged or threatened, actual attorney's fees, court costs, and expert witness fees incurred by City or Agency, arising out of or in any way connected with, in whole or in part, the acts or omissions of Consultant, or any of Consultant's officers, agents, employees or contractors, in the performance of this Agreement, including but not limited to, claims, suits and liabilities for bodily injury, death or property damage to any individual or entity, including employees or officials of Consultant. The provisions of this paragraph shall not apply to claims arising out of the sole negligence or willful misconduct of City or Agency, any of City's or Agency's elected officials, officers, employees or agents. In addition to the foregoing, Consultant shall indemnify, protect, defend and hold harmless the Agency and the City of Palm Desert, their officials, employees, agents and representatives from and against any and all losses, liabilities, damages, costs, and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of the Consultant, its officers, agents, employees or subConsultants (or any entity or individual that the Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement. 10. Insurance. Consultant will maintain insurance in conformance with the requirements set forth below. If Consultant's existing coverage does not meet the requirements set forth here, it will be amended to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount, of coverage required. Any insurance proceeds available to Agency in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to Agency. 10.1 Workers' compensation and emDlover's liabilitv. Consultant shall provide Workers Compensation and Employer's Liability Insurance on an approved policy form providing benefits as required by law with employer's liability limits no less that $1,000,000 per accident or disease. 10.2 Not Used 10.3 Automobile liabilitv. Consultant shall provide auto liability coverage with a limit of no less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be met through a non -owned auto endorsement to the CGL policy. 10.4 Waiver. If the Consultant does not carry Worker's compensation coverage, or if the Consultant will not operate any vehicles at any time within the scope of the services in the agreement, provisions for these coverages may be waived upon review and approval of the Agency's Risk Manager. 11. Status as Independent Contractor. Consultant is, and shall at all times remain as to Agency, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of Agency. Neither Agency nor any of its officials, employees or agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. 12. Non -Assignability; Subcontracting. Consultant shall not assign or subcontract all or any portion of this Agreement without the Agency's prior, written consent. Any attempted or purported assignment or sub -contracting by Consultant shall be null, void and of no effect. 13. Non -Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental disability, medical condition, or sexual orientation. Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental disability, medical condition, or sexual orientation. This clause shall be included in any contract prepared or approved by Consultant in connection with performance of its services under this Agreement. 14. Cooperation. In the event any claim or action is brought against Agency or City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which Agency or City might require. 15. Termination. The right is reserved by the Agency to terminate the Agreement at any time upon seven (7) days written notice, in the event the project is to be abandoned or indefinitely postponed, or in the event the Consultant's services, in the sole judgment of Agency, are unsatisfactory or because of the Consultant's failure to prosecute the work with diligence or within the time limits specified or because of his disability or death. In any such case, the Consultant shall be paid the reasonable value of the services rendered, based upon a proration of the monthly compensation, up to the time of the termination. The Consultant shall keep adequate records to substantiate services rendered and provide copies of original timecards in the event of termination or suspension. 16. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be given by first class U.S. mail or by personal service. Notices shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Consultant's and Agency's regular business hours or by facsimile before or during Consultant's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the Parties may, from time to time, designate in writing pursuant to the provisions of this section. All notices shall be delivered to the Parties at the following addresses: Agency: Carlos L. Ortega, Executive Director Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260-2578 Tel: (760) 346-0611 Fax: (760) 341-6372 With a copy to: Bryce Lynn White Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260-2578 . Tel: (760) 346-0611 Fax: (760) 341-6372 Consultant: Patti Tellez, President/CEO Kuniklo Corporation P. O. Box 5205 Glendale, AZ 85312 Tel: (602) 570-8711 Fax: (623) 478-2662 a�ac4 '' 17. Non -Waiver of Terms, Rights and Remedies. Waiver by either Party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by Agency of any payment to Consultant constitute or be construed as a waiver by Agency of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by Agency shall in no way impair or prejudice any right or remedy available to Agency with regard to such breach or default. 18. Attorney's Fees. In the event that either Party to this Agreement shall commence any legal action or proceeding for damages for breach, or to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and experts' costs. 19. Exhibits; Precedence. All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. 20. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and Agency. This Agreement supersedes all prior oral or written negotiations, representations or agreements. No promise or representation, whether oral or written, express or implied, that is not set forth herein, shall be binding or have any force or effect. This Agreement may not be amended, nor any provision waived, except in a writing signed by the Parties which expressly refers to this Agreement. 21. Partial Invalidity. In case any provision of this Agreement should be deemed by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions shall not be affected or impaired thereby. 22. Successors. This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties to this Agreement. 23. Waivers. No waiver of any breach or default of any term or provision of this Agreement shall be deemed a waiver of any other term or provision of this Agreement, and no waiver shall be valid unless in writing and executed by the waiving party. 24. Construction. Section headings in this Agreement are solely for the convenience of the parties and are not a part of and shall not be used to interpret this Agreement. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all s references to Sections ace to this Agreement. All exhibits to this Agreement are hereby incorporated by reference. 25. In case of conflicts within the contract documents, the document precedence shall be as follows: (a) This Agreement; (b) Exhibit "A" (Certified Payroll Consultant's Proposal of Services (3 pages), dated March 24, 2006, and any written modifications thereto). IN WITNESS WHEREOF, said parties have executed this Agreement effective as of the Effective Date above. KUNIKLO CORPORATION -+i+10(0 PALM DESERT REDEVELOPMENT AGENCY o Z--27- C� Bryn/Whi)b, Project Administrator Carlos L. 4�1 Executive Director 9 {�-121�r.►� State of-Calt#� } )SS. County of M RP 1C© PA } On U APR-\ L_. — , 2-00(o , before me, 4:�-AYire, &yc) Jfl/a a Notary Public, personally appeared 4- tO' ri`CIa T-e—L le,?-- personally known to me (or 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 the person(s) acted, executed the instrument. WITNESS my hand and official seal. FRANNE STROBLAS Notary public - Arizona Maricopa County Expires 03/15/07 Signature rAAA uc-2 _ To (seal) DESCRIPTION OF ATTACHED DOCUMENT: (C-a' Yeewve�4 TITLE OR TYPE OF DOC ` ( UMENT) (NUMBER OF PAGES) 2(( r^� h a6 U (,p (DATE OF DOCUMENT) Right Thumbprint of Signer ore Inv Vv; j f C f . � � In�S� < � �k� �{,oL� A' (Optional) (SIGNER(S) OTHER THAN NAMED ABOVE) �,�i�t:E�,t.,. i,�Yl i � - �rv�e� #�.�►v�+tsl�rr�. EXHIBIT A CONSULTANT'S PROPOSAL OF SERVICES FOR CERTIFIED PAYROLL PROCESSING 10 Backlog Remediation: 1. Meet with project points of contact to clearly understand the reporting hierarchy and contractual responsibilities related to prevailing wages. Understand the current document flow and submittal processes. 2. Meet with Riverside County to identify current backlog issues. Agree on a timetable for resolution. 3. Receive a roster of the firms on the project with corresponding contact information, start dates and payrolls received and submitted to date. Receive an update of "problems" currently outstanding and remedy measures taken. 4. Notify the subcontractors of reporting change and begin working one-on-one with backlog subcontractors. 5. Be available in Riverside County for face to face contractor assistance at least one day per week during the first month of service. Arrange meetings with backlog contractors and conduct training for certified payroll reporting for the subcontractors at the project site, if necessary. Documentation of Weekly Services: 1. Log receipt of all certified payrolls received from subcontractors via U.S. Postal Service and other delivery services at the Kuniklo Corporation designated post office box (Addresses to be provided upon acceptance of proposal.) 2. Keep original certified payroll review checklists and notes 3. Make either a hard copy or electronic copy of all certified payroll reports transmitted to Riverside County and Palm Desert Redevelopment Group for reference for the duration of the project, to be turned over to the General Contractor at the close of the project. Copies will be available for review upon request by General Contractor, Riverside County, and Palm Desert Redevelopment Group. 4. Keep copies of email transmittals, package shipping and tracking tickets to ensure receipt by Riverside County personnel 5. Provide General Contractor electronic copies of transmittal logs and packing slips of documents submitted to Riverside County and Palm Desert Redevelopment Group. Palm Village, Palm Desert March 24, 2006 Page 2 of 3 Confirm Compliance with Prevailing Wage Requirements: 1. Ensure payroll reports contain the correct project information, payroll information, and original signatures 2. Compare wages paid with prevailing wages set forth by Department of Labor schedules and provided by Riverside County, Economic Development Agency 3. Compare wages paid with prevailing wages, and according to adjustment schedule, set forth by California Department of Industrial Relations and provided by Palm Desert Redevelopment Group a. Ensure fringe benefits adjustments have been adhered to by each subcontractor and for each applicable wage classification. 4. Note report errors, wage discrepancies, and missing payroll reports 5. Prepare memos to the subcontractors noting these discrepancies and omissions 6. Prepare payroll reports packages for transmittal to Tom Fan, or Laura Ballesteros, Riverside County Economic Development Agency to include the following: a. One original of DOL form WH-347 Certified Payroll Report for each subcontractor performing work on site b. Original signatory forms, specifically... i. Certification of Understanding and Authorization ii. Certification of Applicable Fringe Benefits Payments iii. Subcontractor's Acknowledgement of Receipt of HUD 2554 c. Original request for wage authorizations d. Proof of restitution payments e. Copy of memos informing the subcontractor of report errors and discrepancies 7. Submit packages to Riverside County Economic Development Agency every other Wednesday, or as requested 8. Update General Contractor submittal logs as necessary and respond to requests for information from project management regarding up to date subcontractor paperwork 9. Coordinate as necessary, but no less than one, subcontractor orientation at the project site to review required forms, reporting processes, regulations, common errors and omissions 10. Assist subcontractors as requested to understand and comply with the Riverside and HUD requirements for Davis Bacon & Related Acts 11. Assist subcontractors as requested to understand and comply with California Prevailing Wage requirements. Palm Village, Palm Desert March 24, 2006 Page 3 of 3 Fees & Resources Fee for service: $6,000 for first month, which includes proposed services, travel, aZ hi h level customer service t achieve b cklog remediation; $3,000 per month, thereafter. So , QW U6t` a►,� is 4 ncc. e.it. Limitations: Costs not inherent to the above proposed services or listed as a reimbursable costs are S b� Quo aAree�n t bK unik Corporation and Palm Desert Redevelopment Group. S�j' Terms: Monthly invoice payable within 15 days of receipt Offer and Acceptance: Proposed by: Patti Tellez President/CEO Kuniklo Corporation P.O. Box 5205 Glendale, AZ 85312 Phone: 602-570-8711 Fax: 623-478-266.Zq Email: Datti.tellez(a)kuniklo.com 4 ✓,4-10Le ignature - Date Accepted by: Bryce White Project Administrator Palm Desert Redevelopment Group 73510 Fred Waring Drive Palm Desert, CA 92260 Phone: 760-776-6377 Fax: Email: bwhite@ci.palm-desert.ca.us S' n r Date