HomeMy WebLinkAboutAGR-7203 - KNAPP ASSOCIATES - EXPERT WITNESS SERVICESqG-7ab3
PROFESSIONAL SERVICES AGREEMENT
Expert Witness Services]
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this `7- day of v,ne.. , 2021 (the "Effective Date") by and
between the CITY OF OR.ANGE, a municipal corporation("City"), and KNAPP ASSOCIATES,
sole proprietor("Contractor"), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City the services set forth in E ibit"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 investigated
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 Agreement are not in the usual
course of City's business and City relies on Contractor's representation that it is independently
engaged in the business of providing such services and is experienced in performing the work.
Contractor 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 forth in this Agreement shall control over any terms and conditions in Exhibit "A"
to the contrary.
Kirsten B. Shea ("City's Project Manager") 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
Contractor shall coordinate its services hereunder with City's Project Manager to the extent
required by City's Project Manager, and that all performances required hereunder by Contractor
shall be performed to the satisfaction of City's Project Manager and the City Manager.
2. Comnensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed TEN THOUSAND DOLLARS and 00/100 ($10,000.00)without the
prior written authorization of City.
b. The above compensation shall include all costs, including, but not limited
to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental,
subsistence and all related expenses.
3. Pavment.
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. ChanEe 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. Indeuendent 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 Ciry 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
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
8. Designated 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.
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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 Comnletion. 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 in Exhibit "A" hereto or as otherwise 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 payment for same. City may
use,reuse or otherwise utilize such products without restriction.
15. Equal EmploYment Opuortunitv. 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 employment, 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.
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.
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16. Couflicts 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. Indemnitv.
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 payment 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.
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.
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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 Department 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,
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
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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
conective 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.
23. Inte ration. 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.
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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"
Knapp Associates City of Orange
5187 Golden Avenue 300 E. Chapman Avenue
Riverside, CA 92505 Orange, CA 92866-1591
Attn: Samuel L. Knapp Attn.: Kirsten B. Shea
Telephone: (951) 688-6043 Telephone: (714) 744-5580
E-Mail: knappassociates@gmail.com E-Mail: kshea@cityoforange.org
25. CounterAarts. 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]
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IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
KNAPP ASSOCIATES, sole proprietor CITY OF ORANGE, a municipal corporation
By: By:
Printe Name:S ick Otto, City Manager
Title: Q1'Q}'
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 officer exists or one corporate
officer holds more than one corporate office,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 egecution of the Agreement,must be provided to
City.
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EXHISIT "A"
SCOPE OF SERVICES
Beneath this sheet.]
ASSOC4ATES
April 23, 2021
Kirsten B. Shea, Senior Assistant City Attorney
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
Re: Proposal for Arboricultural Consulting Services
Knapp Associates will provide arboricultural consulting billed at the hourly rate of
250.00 per hour. This rate includes site inspection, report preparation, review,
telephone, travel time, photographs, plus expenses. A retainer of$2,500 is required to
start work.
TESTIFYING EXPERT FEES
Testifying Expert Fees (Per Hour)............................................ $300.00
Designation as Consultant or Forensic Expert..............................$500.00
Deposition (Per Hour) ............................................................ $300.00
Court Appearance (4 hour min.), plus expenses...........................$1,200.00
STANDARD OF CARE
Services perFormed by Knapp Associates under this agreement will be conducted in a
manner of care and skill ordinarily exercised by members of the profession. No other
warranty, expressed or implied, is made.
Payment is due upon invoice presentation, late 30 days from the invoice date. Clients
agrees to pay a service charge, plus collection, and attorney fees on past due accounts.
Sincerely,
Samuel L. Knapp, RCA#268
Registered Consulting Arborist Authorization / Title / Date
tiJ.'/v
AMER1CAry fOC1ETY aj
CONSOLf3HG AR80RIfTf
5187 GOLDEN AVENUE,RIVERSIDE,CA 92505•RIVERSIDE(951)688-6043 FAX:(951)688-6378
STATE CONTRACTORS LICENSE#481325