HomeMy WebLinkAboutCA Consulting Services; February 2023AGREEMENT FOR PROFESSIONAL SERVICES
BY AND BETWEEN
THE CITY OF SAN RAFAEL
AND
NM ASSOCIATES, INC.
FOR CONSULTING SERVICES
This Agreement is made and entered into as of V0� �� , 2023 the "Effective
Date"), by and between the CITY OF SAN RAFAEL, a charter d C ifornia municipal corporation
(hereinafter "CITY"), and NM ASSOCIATES, INC., a California corporation (hereinafter
"CONSULTANT"). CITY and CONSULTANT may be referred to individually as a "Party" or
collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
A. CITY desires to secure professional services more fully described in this
Agreement, at Exhibit A, entitled "SCOPE OF SERVICES"; and
B. CONSULTANT represents that it, and its subcontractors, if any, have the
professional qualifications, expertise, and necessary licenses and desire to provide certain goods
and/or required services of the quality and type which meet objectives and requirements of CITY;
and
C. The Parties have specified herein the terms and conditions under which such
services will be provided and paid for.
NOW, THEREFORE, the parties hereby agree as follows:
AGREEMENT
1. SERVICES TO BE PROVIDED.
Except as otherwise may be expressly specified in this Agreement, CONSULTANT shall
furnish all technical and professional services, including labor, material, equipment,
transportation, supervision and expertise (collectively referred to as "Services") to satisfactorily
complete the work required by CITY at its sole risk and expense. Services to be provided to CITY
are more fully described in Exhibit A entitled "SCOPE OF SERVICES."
2. COMPENSATION.
In consideration for CONSULTANT's complete performance of Services, CITY shall pay
CONSULTANT for all materials provided and services rendered by CONSULTANT at the unit
rates and rates per hour for labor, as set forth in Exhibit A, for a total amount not to exceed
$30,000.
CONSULTANT will bill City on a monthly basis for Services provided by
Rev. 08.22
CONSULTANT during the preceding month, subject to verification by CITY. CITY will pay
CONSULTANT within thirty (30) days of City's receipt of invoice.
TERM OF AGREEMENT.
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently
modified by a written amendment to this Agreement, the term of this Agreement shall be a one-
year period beginning on January 18, 2023.
4. PROJECT COORDINATION.
A. CITY'S Project Manager. The Assistant City Attorney is hereby designated the
PROJECT MANAGER for the CITY and said PROJECT MANAGER shall supervise all aspects of
the progress and execution of this Agreement.
B. CONSULTANT'S Project Director. CONSULTANT shall assign a single
PROJECT DIRECTOR to have overall responsibility for the progress and execution of this
Agreement for CONSULTANT. Nader Mansourian is hereby designated as the PROJECT
DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution
of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT
shall notify the CITY within ten (10) business days of the substitution.
5. TERMINATION.
A. Discretionary. Either party may terminate this Agreement without cause upon thirty
(30) days written notice mailed or personally delivered to the other party.
B. Cause. Either parry may terminate this Agreement for cause upon fifteen (15) days
written notice mailed or personally delivered to the other party, and the notified party's failure to cure
or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice,
within such fifteen (15) day time period.
C. Effect of Termination. Upon receipt of notice of termination, neither party shall
incur additional obligations under any provision of this Agreement without the prior written consent
of the other.
D. Return of Documents. Upon termination, any and all CITY documents or materials
provided to CONSULTANT and any and all of CONSULTANT's documents and materials
prepared for or relating to the performance of its duties under this Agreement, shall be delivered to
CITY as soon as possible, but not later than thirty (30) days after termination.
6. OWNERSHIP OF DOCUMENTS.
The written documents and materials prepared by the CONSULTANT in connection with
the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may
use said property for any purpose, including projects not contemplated by this Agreement.
08.22 2
7. INSPECTION AND AUDIT.
Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for
inspection and audit, all documents and materials maintained by CONSULTANT in connection with
its performance of its duties under this Agreement. CONSULTANT shall fully cooperate with CITY
or its agent in any such audit or inspection.
ASSIGNABILITY.
The parties agree that they shall not assign or transfer any interest in this Agreement nor the
performance of any of their respective obligations hereunder, without the prior written consent of the
other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising
hereunder shall be void and of no effect.
9. INSURANCE REQUIREMENTS.
During the term of this Agreement, and for any time period set forth in Exhibit B,
CONSULTANT shall procure and maintain in full force and effect, at no cost to CITY insurance
policies with respect to employees and vehicles assigned to the performance of Services under this
Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage
verifications as defined in Exhibit B.
10. INDEMNIFICATION.
A. Except as otherwise provided in subparagraph B of this section, CONSULTANT
shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by
CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the
"City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or
expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and
fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT'S performance of its
obligations or conduct of its operations under this Agreement. The CONSULTANT's obligations
apply regardless of whether or not a liability is caused or contributed to by the active or passive
negligence of the City Indemnitees. However, to the extent that liability is caused by the active
negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnification
obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active
negligence or willful misconduct. In addition, the acceptance or approval of the
CONSULTANT's work or work product by the CITY or any of its directors, officers or
employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the
event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding
arising from CONSULTANT'S performance of or operations under this Agreement,
CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse
the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in
defense of such claims.
B. Where the services to be provided by CONSULTANT under this Agreement are
08.2.2 3
design professional services to be performed by a design professional as that term is defined under
Civil Code Section 2782.8, then, to the extent permitted by law including without limitation, Civil
Code sections 2782, 2782.6 and 2782.8, CONSULTANT shall indemnify and hold harmless the
CITY and its officers, officials, and employees (collectively City Indemnitees) from and against
damages, liabilities or costs (including incidental damages, Court costs, reasonable attorney's fees
as may be determined by the Court, litigation expenses and fees of expert witnesses incurred in
connection therewith and costs of investigation) to the extent they are caused by the negligence,
recklessness, or willful misconduct of CONSULTANT, or any subconsultants, or subcontractor
or anyone directly or indirectly employed by them, or anyone for whom they are legally liable
(collectively Liabilities). Such obligation to hold harmless and indemnify any indemnity shall not
apply to the extent that such Liabilities are caused in part by the negligence or willful misconduct
of such City Indemnitee.
C. The defense and indemnification obligations of this Agreement are undertaken in
addition to, and shall not in any way be limited by, the insurance obligations contained in this
Agreement, and shall survive the termination or completion of this Agreement for the full period
of time allowed by law.
11. NONDISCRIMINATION.
CONSULTANT shall not discriminate, in any way, against any person on the basis of age,
sex, race, color, religion, ancestry, national origin or disability in connection with or related to the
performance of its duties and obligations under this Agreement.
12. COMPLIANCE WITH ALL LAWS.
CONSULTANT shall observe and comply with all applicable federal, state and local laws,
ordinances, codes and regulations, in the performance of its duties and obligations under this
Agreement. CONSULTANT shall perform all services under this Agreement in accordance with
these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and
hold harmless CITY, its officers, agents and employees from any and all damages, liabilities,
penalties, fines and all other consequences from any noncompliance or violation of any laws,
ordinances, codes or regulations.
13. NO THIRD PARTY BENEFICIARIES.
CITY and CONSULTANT do not intend, by any provision of this Agreement, to create in
any third party, any benefit or right owed by one party, under the terms and conditions of this
Agreement, to the other party.
14. NOTICES.
All notices and other communications required or permitted to be given under this Agreement,
including any notice of change of address, shall be in writing and given by personal delivery, or
deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to
be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the
08.2.2 4
date of deposit with the United States Postal Service. Notice shall be given as follows:
To CITY's Project Manager:
City of San Rafael
Assistant City Attorney
1400 Fifth Avenue
San Rafael, CA 94901
15. INDEPENDENT CONTRACTOR.
To CONSULTANT's Project Director:
NM Associates, Inc.
Nader Mansourian
537 Montecillo Road
San Rafael, CA 94903
For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers,
agents and employees shall act in the capacity of an Independent Contractor, and not as employees of
the CITY. CONSULTANT and CITY expressly intend and agree that the status of
CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not
that of an employee of CITY.
16. ENTIRE AGREEMENT -- AMENDMENTS.
A. The terms and conditions of this Agreement, all exhibits attached, and all documents
expressly incorporated by reference, represent the entire Agreement of the parties with respect to the
subject matter of this Agreement.
B. This written Agreement shall supersede any and all prior agreements, oral or written,
regarding the subject matter between the CONSULTANT and the CITY.
C. No other agreement, promise or statement, written or oral, relating to the subject
matter of this Agreement, shall be valid or binding, except by way of a written amendment to this
Agreement.
D. The terms and conditions of this Agreement shall not be altered or modified except
by a written amendment to this Agreement signed by the CONSULTANT and the CITY.
E. If any conflicts arise between the terms and conditions of this Agreement, and the
terms and conditions of the attached exhibits or the documents expressly incorporated by reference,
the terms and conditions of this Agreement shall control.
17. SET-OFF AGAINST DEBTS.
CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT
under this Agreement, any monies which CONSULTANT owes CITY under any ordinance,
agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or
other amounts.
v 08.22
18. WAIVERS.
The waiver by either party of any breach or violation of any term, covenant or condition of
this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any
other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation
of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent
acceptance by either party of any fee, performance, or other consideration which may become due or
owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation
by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance
or regulation.
19. COSTS AND ATTORNEY'S FEES.
The prevailing party in any action brought to enforce the terms and conditions of this
Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs
(including claims administration) and attorney's fees expended in connection with such action.
20. CITY BUSINESS LICENSE / OTHER TAXES.
CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY
business license as required by the San Rafael Municipal Code, and CONSULTANT shall pay any
and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for
any work performed under this Agreement, until CONSULTANT has provided CITY with a
completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and
Certification).
21. SURVIVAL OF TERMS.
Any terms of this Agreement that by their nature extend beyond the term (or termination) of
this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective
successors and assigns.
22. APPLICABLE LAW.
The laws of the State of California shall govern this Agreement.
23. COUNTERPARTS AND ELECTRONIC SIGNATURE.
This Agreement may be executed by electronic signature and in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one document.
Counterpart signature pages may be delivered by telecopier, email or other means of electronic
transmission.
[Signatures are on the following page. ]
08.22 6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month
and year first above written.
CITY OF SAN RAFAEL:
APPROVED AS TO FORM:
Office o,f,the City Attorney
By: GEIIEVE COY,
Assista At Attorney
ATTEST:
City Clerk
LINDSAY LARA, City Clerk
08.22 7
CONSULTANT:
NM ASSOCIATES, INC.
Name: Nader Mansourian
Title: Chief Executive Officer
[If CONSULTANT is a corporation, add
signature of second corporate officer]
By:
Name:
Title:
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for CITY by CONSULTANT under this Agreement are described
below.
CONSULTANT is the former Public Works Director for CITY.
Through past work with CITY, CONSULTANT has extensive background and
understanding of the Sonoma Marin Area Rail Transit ("SMART") passenger train service and
numerous public works projects enabling the SMART train to operate as designed within CITY's
jurisdiction, including planning for and construction of an at -grade rail crossing at Andersen Drive.
CITY is presently defending several lawsuits involving physical injuries sustained by
plaintiffs as they rode their bicycles over the rail gap of the SMART railway crossing at its intersection
with Andersen Drive and has an immediate need for consulting services in connection with the
following lawsuits: (1) Liudmila Naumik v. City of San Rafael _et al.,-- Marin County Superior
Court Case No. CIV 2100734; (2) Anthony_Alex v. City of San Rafael, et al., Marin County
Superior Court Case No. CIV 2203409.
CONSULTANT has particular knowledge and expertise concerning the history and design
of the SMART railway crossing at Andersen Drive during some of the time periods relevant to the
current lawsuits.
CONSULTANT shall review CITY files and other documents and information, attend
meetings, including mediations and court appearances, and do such other preparation as is necessary
for defense of the CITY in these matters during the term of this Agreement and accepted by
CONSULTANT.
CONSULTANT's services shall be performed at the direction of CITY counsel, and shall
be considered privileged and confidential for the purpose of assisting the CITY in defense of the
above-named lawsuits.
CONSULTANT shall bill CITY on a time and materials basis. CONSULTANT's hourly
rate is $250.00.
Rev. 08.22 A-1
EXHIBIT B
INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth below,
CONSULTANT shall procure and maintain in full force and effect, at no cost to CITY insurance
policies with respect to employees and vehicles assigned to the performance of Services under this
Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage
verifications as defined in this Exhibit B.
A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall
maintain, at no expense to CITY, the following insurance policies:
1. Automobile liability. An automobile liability (owned, non -owned, and hired
vehicles) insurance policy in the minimum amount of $500,000 per occurrence.
2. Umbrella policy. Personal umbrella policy in the minimum amount of
$1,000,000.
3. Workers' compensation. If it employs any person, CONSULTANT shall
maintain workers' compensation insurance, as required by the State of California, with statutory
limits, and employer's liability insurance with limits of no less than $1,000,000 per accident for
bodily injury or disease. CONSULTANT's workers' compensation insurance shall be
specifically endorsed to waive any right of subrogation against CITY.
4. By execution of this Agreement, CONSULTANT hereby grants to CITY
a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against
CITY by virtue of the payment of any loss under such insurance.
Rev. 08.22 B-1
CIO' RAPQ C
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Jrk WITH F'��
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: City Attorney
Project Manager: Genevieve Coyle Extension: 3080
Contractor Name: NM Associates, Inc.
Contractor's Contact: Nader Mansourian, CEO Contact's Email: naderm@comcast.net
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
l
a. Email PINS Introductory Notice to Contractor
DATE
Check/Initial
1
Project Manager
I
n/a
k;
b. Email contract (in Word) and attachments to City
1/18/2023
Attorney c/o Laraine.Gittens@cityofsanrafael.org
J
2 City Attorney a. Review, revise, and comment on draft agreement
2/3/2023
and return to Project Manager
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
3 Department Director Approval of final agreement form to send to
contractor
4 Project Manager Forward three (3) originals of final agreement to
2/3/2023
xx�
i contractor for their signature
5
Project Manager
When necessary, contractor -signed agreement
❑x N/A
agendized for City Council approval *
*City Council approval required for Professional Services
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Date of City Council approval
PRINT
CONTINUE ROUTING PROCESS WITH HARD COPY
6
Project Manager
Forward signed original agreements to City
2/6/2023
Attorney with printed copy of this routing form
7
City Attorney
Review and approve hard copy of signed
agreement
8
City Attorney
Review and approve insurance in PINS, and bonds
(for Public Works Contracts)
Agreement executed by City Council authorized
_
,, r 2-3
S
9
City Manager / Mayor
official
10
City Clerk
Attest signatures, retains original agreement and
forwards copies to Project Manager
r