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HomeMy WebLinkAboutAGR-7201 - BIOMECHANICAL RESEARCH AND TESTING LLC - EXPERT WITNESS SERVICEScR-?a.o:l PROFESSIONAL SERVICES AGREEMENT Expert Witness Services] THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at Orange, ,California, on this day of •N , 2021 (the "Effective Date") by and between the CITY QF ORANGE, a municipal corporation ("City"), and BIOMECHAN[CAL RESEARCH AND TESTING, LLC, a California lim'ited liabi:lity company ("Contractor"), who agree as follows: 1. Services. Subject to the terms arid conditions set fortH in Chis .Agreement; Contractor shall provide to.the reasonable satisfaction of City the services set forth in Exhibit"A," which is attached hereto and incorporated herein by reference. As a material inducement to City to enter into this .Agreement,Contractor represents and warrants that it has thoroughly invesfigated and considered. the scope of services and fully understands the difficulties and restrictions in performing the work. The services which are the subject of this Agreemerit are not in the usual course of C:ity's business arid City relies on Contractor's representation that it is independently engaged in the busiriess of providing such services and is experienced in performing the work: Contraetor shall perform all services in a manner reasonably satisfactory to City and in a manner in conformance with the standards of quality normally observed by an entity providing such services to a municipal agency. All services provided shall conform to all federal; state and local laws, rules and regulations and to the best professional standards and practices. The terms and conditions set farth in this Agreement shall control over any terms and conditions in Exhibit "A" to the contrary.. Kirsten B, Shea ("City's Project.Manager'a) shall be the person to whom Contractor will report for the performance of services hereunder. It is understood that Contractor's performance hereunder shall be under the supervision of City's Project Manager (or his/her designee), that C.ontractor shall coordinate its services hereunder with City's Project Manager to the extent required by C'ity's Project Manager, and that all performances xequired hereunder by Contractor shall be perforined to the satisfaction of Gity's Project Manager and the City Manager. 2. ComAensation and Fees. a.: Contraetor's total compensation for all services performed under this Agreement, shall not exceed FIFTEEN THOUSAND DOLLARS and 00/100 ($15,000.00) without the prior written authorization of City. b. The above compensation shall include all costs, including, but nof limited to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental, subsistence and all related expenses. 3. Payment. a. As scheduled services are completed, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performed or incurred. b. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed. c.City will pay Contractor the amount invoiced within thirty(30) days after the approval of the invoice. d. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice. 4. Change Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services and a price therefor have been previously authorized in writing and approved by City as an amendment to this Agreement. City's Project Manager is authorized to approve a reduction in the services to be performed and compensation therefor. All amendments shall set forth the changes of work, extension of time, and/or adjustment of the compensation to be paid by City to Contractor and shall be signed by the City's Project Manager, City Manager or City Council, as applicable. 5. Licenses. Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the work contemplated by this Agreement and that Contractor and its subcontractors shall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Agreement. 6. Independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor's services rendered pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. Contractor acknowledges that it and any subcontractors, agents or employees employed by Contractor shall not,under any circumstances,be considered employees of City,and that they shall not be entitled to any of the benefits or rights afforded employees of City,including,but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers'compensation insurance benefits. 7. Contractor Not Agent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an 2 agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever. 8. Desi nated Persons. Only those qualified persons authorized by City's Project Manager, or as designated in Exhibit"A," shall perform work provided for under this Agreement. It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those designated. 9. Reserved. 10. Time of Completion. Except as otherwise specified in Exhibit "A," Contractor shall commence the work provided for in this Agreement in accordance with the time period set forth by the City Project Manager or agreed to by and between the representatives of the parties. 11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessary and incidental to the prosecution of Contractor's work. 12. Reserved. 13. Reserved. 14. Products of Contractor. The documents, studies, evaluations, assessments, reports, plans, citations, materials,manuals, technical data, logs, files, designs and other products produced or provided by Contractor for this Agreement shall become the property of City upon receipt. Contractor shall deliver all such products to City prior to payrnent for same. City may use, reuse or otherwise utilize such products without restriction. 15. Equal Emplo_yment Opportunity. During the performance of this Agreement, Contractor agrees as follows: a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex,national origin,mental or physical disability, or any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed, and that employees are treated during employrnent, without regard to their race, color, religion, sex, national origin,mental or physical disability, or any other basis prohibited by applicable law. Such actions shall include,but not be limited to the following: employment,upgrading, demotion or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause. b. Contractor shall, in all solicitations and advertisements for employees placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. 3 c.Contractor shall cause the foregoing paragraphs(a) and(b)to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials. 16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the making, or in any way attempt to use its position as a consultant to influence any decision of City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. 17. Indemnity. a. To the fullest extent permitted by law, Contractor agrees to indemnify, defend and hold City, its City Council and each member thereof, and the officers, officials, agents and employees of City(collectively the"Indemnitees") entirely harmless from all liability arising out of: 1) Any and all claims under workers' compensation acts and other employee benefit acts with respect to Contractor's employees or Contractor's subcontractor's employees arising out of Contractor's work under this Agreement, including any and all claims under any law pertaining to Contractor or its employees' status as an independent contractor and any and all claims under Labor Code section 1720 related to the payrnent of prevailing wages for public works projects; and 2) Any claim, loss, injury to or death of persons or damage to property caused by any act, neglect, default, or omission other than a professional act or omission of Contractor, or person, firm or corporation employed by Contractor, either directly or by independent contract, including all damages due to loss or theft sustained by any person, firm or corporation including the Indemnitees, or any of them, arising out of, or in any way connected with the work or services which are the subject of this Agreement, including injury or damage either on or off City's property; but not for any loss, injury, death or damage caused by the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any action, suit or other proceedings as a result of coverage under this subparagraph. b. Except for the Indemnitees, the indemnifications provided in this Agreement shall not be construed to extend any third party indemnification rights of any kind to any person or entity which is not a signatory to this Agreement. c. The indemnities set forth in this section shall survive any closing, rescission, or termination of this Agreement, and shall continue to be binding and in full force and effect in perpetuity with respect to Contractor and its successors. 4 18. Insurance. Contractor shall carry workers' compensation insurance as required by law for the protection of its employees during the progress of the work. Contractor understands that it is an independent contractor and not entitled to any workers' compensation benefits under any City program. 19. Termination. City may for any reason terminate this Agreement by giving Contractor not less than five (5) days' written notice of intent to terminate. Upon receipt of such notice, Contractor shall immediately cease work, unless the notice from City provides otherwise. Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with this Agreement, unless termination by City shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits. 20. Maintenance and Inspection of Records. In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and complete books, documents, papers, accounting records, and other information (collectively, the records")pertaining to the costs of and completion of services performed under this Agreement. City and its authorized representatives shall have access to and the right to audit and reproduce any of Contractor's records regarding the services provided under this Agreement. Contractor shall maintain all such records for a period of at least three(3) years after termination or completion of this Agreement. Contractor agrees to make available all such records for inspection or audit at its offices during normal business hours and upon three(3)days' notice from City, and copies thereof shall be furnished if requested. 21. Compliance with all Laws/Immi ration Laws. a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement. b. If the work provided for in this Agreement constitutes a"public works,"as that term is defined in Section 1720 of the California Labor Code,for which prevailing wages must be paid, to the extent Contractor's employees will perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it, shall pay not less than the specified prevailing rates of wages to all such workers. The general prevailing wage determinations for crafts can be located on the website of the Deparhnent of Industrial Relations (www.dir.ca.gov/DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria,including project compliance monitoring. c.Contractor represents and warrants that Contractor: 1) Has complied and shall at all times during the term of this Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, 5 and orders, including, without limitation, the Immigration Reform and Control Act of 1986 IRCA); and 2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and 3) Has properly maintained, and shall at all times during the term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I-9 for each of Contractor's employees; and 4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration. d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21.c. e.Contractor shall, upon request of City, provide a list of all employees working under this Agreement and shall provide,to the reasonable satisfaction of City,verification that all such employees are eligible to work in the United States. All costs associated with such verification shall be borne by Contractor. Once such request has been made, Contractor may not change employees working under this Agreement without written notice to City, accompanied by the verification required herein for such employees. f.Contractor shall require all subcontractors or sub-consultants to make the same verification as set forth in Subsection 21.e. g. If Contractor or subcontractor knowingly employs an employee providing work under this Agreement who is not authorized to work in the United States, and/or fails to follow federal laws to determine the status of such employee,that shall constitute a material breach of this Agreement and may be cause for immediate termination of this Agreement by City. h. Contractor agrees to indemnify and hold City, its officers, officials, agents and employees harmless for, of and from any loss,including but not limited to fines,penalties and corrective measures City may sustain by reason of Contractor's failure to comply with said laws, rules and regulations in connection with the performance of this Agreement. 22. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California and Contractor agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California. 6 23. Integration. This Agreement constitutes the entire agreement of the parties. No other agreement,oral or written,pertaining to the work to be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both parties. Any work performed which is inconsistent with or in violation of the provisions of this Agreement shall not be compensated. 24. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission. CONTRACTOR" CITY" Biomechanical Research and Testing, LLC City of Orange 2201 N. Lakewood Blvd. #1865 300 E. Chapman Avenue Long Beach, CA 90815 Orange, CA 92866-1591 Attn.: Peter Serna Rivera Attn.: Kirsten B. Shea Telephone: (562) 368-8846 Telephone: (714) 744-5580 E-Mail: psernarivera@brteng.com E-Mail: kshea@cityoforange.org 25. Counterparts. This Agreement may be executed in one or more counterparts,each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures. Signatures on next page] 7 IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written. CONTRACTOR" CITY" Biomecha 'cal Research and Testing, LLC, CITY OF ORANGE,a municipal corporation A Califo 'a limited:.iability company By: 1 r`'i By: Printe Name: `) ,So 1 W CLc 2 ick Otto, City Manager Title: u rvEtL By: APPROVED AS TO FORM: Printed Name: Title: Kirsten B. Shea, Sr. Assistant City Attorney NOTE: City requires the following signature(s) on behalf of the Contractor: 1) the Chairman of the Board, the President or a Vice-President,AND (2)the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate of cer exists or one corporate officer holds more than one corporate of ce, please so indicate. OR The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to City. 8 EXHIBIT "A" SCOPE OF SERVICES Beneath this sheet.] i Professional Services BIOMECM/1NICAL R6'URL'1 6 TSTINO Accident Reconstruction BRT engineers have extensive experience in reconstructing automotive, recreational and industrial accidents including analyzing low-light scenes for conspicuity and visibility issues. Iniury Biomechanics A biomechanical engineering analysis combines the principles of inechanical engineering and biology to evaluate how the human body is injured. Our entire biomechanical engineering staff has formal education and professional training in both engineering and biological/anatomical sciences. Event Data Recorders A significant portion of automobiles on the roads today are equipped with readable event data recorders, sometimes referred to as "Black Boxes."BRT personnel can access and download available data after a vehicle or heavy truck is involved in an accident. Forensic Mappin and Photo rammetry BRT personnel are trained and certified in forensic mapping and scene investigation services. These include 3D laser scanning, the use of survey equipment and digital recreation of accident scenes, vehicles,buildings, or virtually any other object or environment. Amusement Park Consultin BRT provides advanced biodynamic investigation of amusement rides and attractions, including instrumentation of ride vehicles, instrumentation of adult and child human subjects, and the use of adult and child anthropomorphic dummies. Premises Liabilitv BRT engineers perform technical analysis of accidents involving slip/trip and fall, impact by moving/falling objects,product failure and other incidents where injuries may occur while on a premises owned or controlled by another person. Simulations, Visualizations and Animations BRT is an industry leader, utilizing and researching state-of-the-art simulation, visualization and animation capabilities. BRT personnel are extensively trained and have published peer-reviewed papers utilizing many advanced simulation, visualization and animation techniques and software. Test Services BRT conducts fully instrumented tests of vehicles, amusement park rides and attractions, industrial incidents, daily activities, and virtually anything else involving movement of an object or the human body.