HomeMy WebLinkAboutContracts & Agreements_68-2013_CCv0001.pdf AGREEMENT TO PERFORM PROFESSIONAL SERVICES
This agreement for the provision of engineering analysis and other expert witness
services("Agreement") is made and entered in this 6th day of April,2013 ("Effective Date"),by
and between the City of Redlands,a municipal corporation("City)"and Momentum Engineering
Corp. ("Consultant").City and Consultant are sometimes individually referred to herein as a
"Party"and,together,as the"Parties."In consideration of the mutual promises contained herein,
City and Consultant agree as follows:
ARTICLE I —ENGAGEMENT OF CONSULTANT
1.1 City hereby engages Consultant to provide engineering analysis and other expert witness
services for City(the"Services"),
1.2 The Services shall be performed by Consultant in a professional manner, and Consultant
represents that it has the skill and the professional expertise necessary to provide the
Services to City at a level of competency presently maintained by other practicing
professional consultants in the industry providing like and similar types of Services.
ARTICLE 2—SERVICES OF CONSULTANT
2.1 The specific Services that Consultant shall perform are more particularly described as the
inspection of two vehicles involved in a traffic collision for accident reconstruction
purposes, including digital 3D scanning, measuring, documenting and photographing
those vehicles as described in Exhibit"A"attached hereto,
2.2 Consultant shall comply with applicable federal,state and local laws and regulations in
the performance of the Services.
ARTICLE 3—RESPONSIBILITIES OF CITY
3.1 City shall make available to Consultant information in its possession that may assist
Consultant in performing the Services.
3.2 City designates Kim Braun,the City's Human Resources/Risk Manager,as City's
representative with respect to performance of the Services,and such person shall have the
authority to transmit instructions, receive information, interpret and define City's policies
and decisions with respect to performance of the Services.
ARTICLE 4—PERFORMANCE OF SERVICES
4,1 Consultant shall perform and complete the Services in a prompt and diligent manner.The
Services shall commence within ten (10)days of the Effective Date of this Agreement,
4.2 If Consultant's Services include deliverable electronic visual presentation materials,such
materials shall be delivered in a form,and made available to the City, consistent with
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City Council adopted policy for the same, It shall be the obligation of Consultant to
obtain a copy of such policy from City Staff.
ARTICLE 5—PAYMENTS TO CONSULTANT
5.1 The total compensation for Consultant's performance of the Services shall be Three
Thousand Dollars($3,000) in accordance with the hourly rates and fixed costs for the
services described in Exhibit"A."
5.2 Consultant shall submit an invoice to City upon completion of the Services describing the
Services performed. City shall pay Consultant no later than thirty(30)days after receipt
and approval by City of Consultant's invoice,
5.3 All notices shall be given in writing by personal delivery or by mail.Notices sent by mail
should be addressed as follows:
C4 Consultant
Kim Braun Phil Wang
Human Resources/Risk Manager Momentum Engineering Corp.
35 Cajon Street, Suite 10 3860 Del Arno Boulevard, Suite 402
Redlands,CA 92373 Torrence, CA 90503
When so addressed, such notices shall be deemed given upon deposit in the United States
Mail. Changes may be made in the names and addresses of the person to whom notices
and payments are to be given by giving notice pursuant to this section 5.2.
ARTICLE 6—INSURANCE AND INDEMNIFICATION
6.1 Insurance required by this Agreement shall be maintained by Consultant for the duration
of its performance of the Services. Consultant shall not perform any Services unless and
until the required insurance listed below is obtained by Consultant. Consultant shall
provide City with certificates of insurance and endorsements evidencing such insurance
prior to commencement of the Services. Insurance policies shall include a provision
prohibiting cancellation or modification of the policy except upon thirty(30)days prior
written notice to City.
6.2 � Consultant shall secure and maintain Workers' Compensation and Employer's Liability
insurance throughout the duration of its performance of the Services in accordance with
the laws of the State of California,with an insurance carrier acceptable to City as
described in Exhibit"B,"entitled"Workers' Compensation Insurance Certification,"
which is attached hereto and incorporated herein by this reference.
6.3 Consultant shall secure and maintain comprehensive general liability insurance with
carriers acceptable to City.Minimum coverage of One Million Dollars ($1,000,000)per
occurrence and Two Million Dollars($2,000,000)aggregate for public liability,property
damage and personal injury is required. City shall be named as an additional insured and
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such insurance shall be primary and non-contributing to any insurance or self-insurance
maintained by City.
6.4 Consultant shall secure and maintain professional liability insurance throughout the term
of this Agreement in the amount of One Million Dollars($1,000,000)per claim made.
6.5 Consultant shall have business auto liability coverage,with minimum limits of One
Million Dollars($1,000,000)per occurrence,combined single limit bodily injury liability
and property damage liability. This coverage shall include all Consultant owned vehicles
used in connection with Consultant's provision of the Services, hired and non-owned
vehicles,and employee non-ownership vehicles. City shall be named as an additional
insured and such insurance shall be primary and non-contributing to any insurance or self
insurance maintained by City.
6.6 Consultant shall defend, indemnify and hold harmless City and its elected officials,
employees and agents from and against any and all claims, losses or liability, including
attorneys' fees,arising from injury or death to persons or damage to property occasioned
by and negligent act,omission or failure to act by Consultant, its officers,employees and
agents in performing the Services.
ARTICLE 7—CONFLICTS OF INTEREST
7.1 Consultant covenants and represents that it does not have any investment or interest in
any real property that may be the subject of this Agreement or any other source of
income, interest in real property or investment that would be affected in any manner or
degree by the performance of Consultant's Services. Consultant further covenants and
represents that in the performance of its duties hereunder, no person having any such
interest shall perform any Services tinder this Agreement,
7.2 Consultant agrees it is not a designated employee within the meaning of the Political
Reform Act because Consultant:
A. Does not make or participate in:
(i) the making or any City governmental decisions regarding approval of a
rate,rule or regulation,or the adoption or enforcement of laws;
(ii) the issuance,denial,suspension or revocation of City permits, licenses,
applications,certifications,approvals,orders or similar authorization or
entitlements;
(iii) authoring City to enter into, modify or renew a contract;
(iv) granting City approval to a contract that requires City approval and to
which City is a party,or to the specifications for such a contract;
(v) granting City approval to a plan,design, report, Study or similar item;
(vi) adopting,or granting City approval of policies, standards or guidelines for
City or for any subdivision thereof.
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B. Does not serve in a staff capacity with City and in that capacity,participate in making
a governmental decision or otherwise perform the same or substantially the same
duties for City that would otherwise be performed by an individual holding a position
specified in City's Conflict of interest Code under Government Code section 87302.
73 In the event City officially determines that Consultant must disclose its financial
interests,Consultant shall complete and file a Fair Political Practices Commission Form
700, State of Economic Interests with the City Clerks' office pursuant to the written
instructions provided by the City Clerk.
ARTICLE 8—GENERAL CONSIDERATIONS
8.1 In the event any action is commenced to enforce or interpret any of the terms or
conditions of this Agreement the prevailing Patty shall, in addition to any costs and other
relief,be entitled to the recovery of its reasonable attorneys' fees, including fees for the
use of in-house counsel by a Party.
8.2 Consultant shall not assign any of the Services,except with the prior written approval of
City and in strict compliance with the terms, and conditions of this Agreement.
8.3 Project related documents,records,drawings,designs, cost estimates,electronic data
files,databases and any other documents developed by Consultant in connection with its
performance of the Services, and any copyright interest in such documents,shall become
the property of City and shall be delivered to City upon completion of the Services,or
upon the request of City. Any reuse of such documents,and any use of incomplete
documents,shall be at City's sole risk.
8.4 Consultant is for all purposes under this Agreement an independent contractor and shall
perform the Services as an independent contractor.Neither City nor of its agents shall
have control over the conduct of Consultant or Consultant's employees,except as Herein
set forth. Consultant shall supply necessary tools and instrumentalities required to
perform the Services.Assigned personnel employed by Consultant are for its account
only,and in no event shall Consultant or personnel retained by it be deemed to have been
employed by City or engaged by City for the account of,or on behalf of City. Consultant
shall have no authority,express by City for the account of,or on behalf of City.
Consultant shall have no authority,express or implied,to act on behalf of City in any
capacity whatsoever as an agent, nor shall Consultant have any authority,express or
implied,to bind City to any obligation.
8,5 Unless earlier terminated as provided for below,this Agreement shall terminate upon
completion and acceptance of the Services by City; provided, however this Agreement
may be terminated by City's City Manager,or his designee, in his sole discretion,by
providing five(5)days prior written notice to Consultant(delivered by certified mail,
return receipt requested) of City's intent to terminate. If this Agreement is terminated by
City,an adjustment to Consultant's compensation shall be made,but(1)no amount shall
be allowed for anticipated profit or unperformed Services, and (2)any payment due
Consultant at the time of termination may be adjusted to the extent of any additional costs
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to City occasioned by any default by Consultant. Upon receipt of a termination notice,
Consultant shall immediately discontinue its provision of the Services and,within five(5)
days of the date of the termination notice,deliver or otherwise make available to City,
copies(in both hard copy and electronic form,where applicable)of project related data,
design calculations, drawings, specifications,reports,estimates, summaries and such
other information and materials as may have been accumulated by Consultant in
performing the Services. Consultant shall be compensated on a pro-rata basis for Services
completed up to the date of termination.
8.6 Consultant shall maintain books, ledgers, invoices, accounts and other records and
documents evidencing costs and expenses related to the Services for a period of three(3)
years,or for any longer period required by law,from the date of final payment to
Consultant pursuant to this Agreement. Such books shall be available at reasonable times
for examination by City at the office of Consultant.
8.7 This Agreement, including the Exhibit incorporated herein by reference,represents the
entire agreement and understanding between the Parties as to the matters contained
herein,and any prior negotiations,-written proposals or verbal agreements relating to such
matters ate superseded by this Agreement. Except as otherwise provided for herein,an
amendment to this Agreement shall be in writing,approved by City and signed by City
and Consultant.
8.8 This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, duty authorizes representative of the City and Consultant have
signed in confirmation of this Agreement.
CITY OF REDLANDS MOMENTUM ENGINEERING CORP.
By: By:
76 Phil Wall
A'ITEST:
Sam Irwin,Ci Cler
Exhibit"A"
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Prelim Cost Analysis
/H 01W171VTU1"
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3 engirreerir7,g carp.
Orange St.Fatal
Prelim Cost Analysis-Two vehicle inspections.
t
Travel time: Approx:4 hrs tr $200/hr and$1801hr--$1520
Veh. h sp. 4 hrs. @$200/hr and $1801hr-- $1520
Includes digital 3D scanning, measuring,documenting and
photographing of two vehicles. CDR download (if applicable)
Mileage: $115
Digital Photographs: $31400
Process data,photographs,create photobinder$500
Total: Approx. $4000
Apply Professional Discount of 25%($-1000)
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Revised Total: $3000
3860 Del Amo Blvd., Suite 402 Torrance, CA 90543.telephone(394)406-3657.tax(390)542-9094-
www.momentum-eng.com
Exhibit"B"
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WORKERS' COMPENSATION INSURANCE CERTIFICATION TO PERFORM
ENGINEERING ANALYSIS AND OTHER EXPERT WITNESS SERVICES
Every employer except the State, shall secure the payment of compensation in one or more of the
following ways:
(a) By being insured against liability to pay compensation in one or more insurer duly
authorized to write compensation insurance in this State.
(b) By securing from the Director of Industrial Relations, a certificate of consent to
self-insure, either as an individual employer or as one employer in a group of
employers, which may be given upon furnishing proof satisfactory to the Director
of Industrial Relations of ability to self-insure and to pay any compensation that
may become due to his or her employees.
I am aware of the provisions of Section 3700 of the Labor Code which requires every employer
to be insured against liability for Workers' Compensation or to undertake self-insurance in
accordance with the provisions of that Code, and I will comply with such provisions before
commencing the performance of the work of this Agreement. (Labor Code §1861).
Momentum Engineering Corp.
J�"(,A_
By: 16-1
Phil Wang' Date:
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ALCORD. DATE(?Ar
CERTIFICATE OF LIABILITY INSURANCE 4/11/20JDDNYYY)
13
PRODUCER THIS CERTIFICATE IS ISSUEDAS ;K—MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
DAVE CARPENTER INSURANCE HOLDER.THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
22850 Crenshaw Blvd. #203 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Torrance, CA 90505
310-325-6565 INSURERS AFFORDING COVERAGE NAIL#
!NSURFO MOMENTUM ENGINEERING CORP. INSURER k- FARMERS INSURANCE GROUP�
3860 DEL AMO BLVD. #402 INSURER B, BERKSHIRE HATHAWAY
TORRANCE, CA 90503 INSURER c: HOUSTON CASUALTY
310-406-3657 INSURER D:
INSURER E
COVERAGES
THE POUCiESOFINSURANCE LISTEDRELOWHAVE BEEN ISSUED TO THE INSURED NA)VFD ABOVE FOR THE POLICY PERIOD INC:CATED,NOMITHEITANDING,
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO'AflCH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN,THE INSURANCE AFFORDED BYTFE POLICIES DESCRIBED HEREIN ISSUBJECT TOALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES_AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAWS,
INSR %DD'L POLICY EFFFCTIVE POLICY N
TYPE OF INSURANCE POUOYNUMBER DATE(MMIDDA-Y) DATE(02"MOO LIMITS
-LT& N'qKQ
GENERAL LIABILITY EACH OCCURRENCE $ 2400f
I'jKea
X COMMERCIAL GENERAL LIABILITY PREMISES(Ea r a 75,000
A CLAIMSMADE ox OCCUR MED EXP(Ariyonepetsm)
"000
A X 60465-57-98 6-10-12 6-10-13 PERSONAL&ADV INJURY_ s 2,000,000
GENERAL AGGREGATE s 4,000,000
GEN'L AGGREGATE LIMIT APPLIESPEk.' PRODUCTS-COMROP AGG $ 1,000,000
F--j PRO-
POUDY JECT "LOC
AUTOMOBILE LIABILITY COMBINEO SINGLE LIMIT
ANNAUTO (Ea accident} s 2,000,000
AUTO
ALLOWNED AUTOS
BODILYLy INJURY
SCHEDULED AUTOS (P-1
A X HIRED AUTOS 60465-57-98 6-10-12 6-10-13 somy INJURY
NON-OWNED AUTOS (PvecddenQ
PROPERTY DAMAGE $
(Per accident)
GARAGE UABIUTY AUTO ONLY-EAACCIDENT S
ANYAUTO OTHER THAN EAACC S
AUTO ONLY. AGO $
EXCESSfUMSR ELLA LIABILITY EACH OCCURRENCE S
OCCUR CLAIMSMADE AGGREGATE
DEDUCTIBLE $
RETENTION $ $
(WORKERS COM PENSATION AND X TORY LIMITS —A ER
EMPLOYERS LIABILITY 2200057171-111 6-27-12 6-27-13 EL EACH ACCIDENT $ 1 400,000
ANY PROPRETORMARTNMEMOUTIVE
B OFFIcmmEmse"' vx'-Lu0FG7 EL DISEASE-EhIEMPLOYEE $ 1,000,000
ffps.destnbetmder EL DISEASE-POLICY LIMIT S 1,000,000
OTHER
C PROFESSIONAL E&O H712-16947 5-23-12 5-23-13 2 MILLION EACH CLAIM
I —
DESCRiP"014 OE OPERATIONS fLOCATIONS iVEHICLES/6KOLUSIONS ADDED BYENDORSEMEW /SPECIAL PROVISIONS
ACCIDENT RE—CREATION AND ANIMATION COMPANY & PROFESSIONAL SERVICES
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRA-nON
DATE THEREOF, THE ISSUING INSURER W.LL ENDEAVOR TO MAIL 10 DAYS 1ARITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LErr,BUT FAILURE TO DO$0 SHALL
IMPOSE NO ORUGATION OR LIA131UTY OF ANY UPON THE INSURER, ITS AGENTS OR
REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
ACORD26(2001/08) Q ACORD CORPORATION 1988
r
rr M OMrAI M/YI
engineering WAP-
April 2, 2013
FEE AGREEMENT
1. IDENTIFICATION OF PARTIES.
This agreement is made between MOMENTUM ENGINEERING CORP., hereafter referred
to as "MEC," and Lt. Travis Martinez and Redlands Police Department, hereafter referred to as
"Clients."
2. CONDITIONS.
This Agreement will not take effect, and MEC will have no obligation to provide any
services until client delivers a signed copy of this agreement and pays the required
retainer listed in paragraph 7. Furthermore, MEC does not allow designation of any
MEC employee prior to execution of this agreement and receipt of retainer.
3. SERVICES TO BE PROVIDED.
The set vices to be provided by MEC to Clients are as follows: Consultation as an expert witness.
If more than one MEC expert is designated,then MEC will provide services of multiple expert
witnesses. It is further recognized that supporting staff members may also work on the assigned
matter at rates disclosed in the MEC Fee Schedule. It is agreed by Clients that MEC will work on
the matter of: Orange St. Fatal.Date of Loss: January 17, 2013.
4. RESPONSIBILITIES OF MEC AND CLIENTS.
MEC will perform the engineering analysis and other services called for under this
agreement, keep Clients reasonably informed of progress and developments, and respond
to Clients' inquiries and communications. Clients will be truthful and cooperative with
MEC; keep MEC reasonably informed of developments and make any timely payments
required by this agreement.
5. FEES.
Clients will pay MEC for fees for the services provided under this agreement at the
respective hourly rates of the individuals providing the services. MEC will charge in
increments of one tenth of an hour, rounded off for each particular activity to the nearest
one tenth of an hour. The minimum time charged for any particular activity will be one
tenth of an hour.
MEC will charge for all activities undertaken in providing services to Clients under this
agreement, including, but not limited to the following: accident reconstruction, }
engineering, analysis, animation, research, provide testimony in deposition, binding
arbitration, trials, conferences (preparation and participation), correspondence and
documents (review and preparation), and telephone conversations. When two or more of
MEC's personnel are engaged in working on the matter at the same time, such as in
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conferences between them or when performing inspections, etc., the time of each will be
charged at his or her hourly rate.
MEC rates will be updated on an annual basis, usually after January 1St of each year. If,
while this agreement is in effect, MEC increases the hourly rates being charged to clients
generally for expert's fees, that increase may be applied to fees incurred under this
agreement, but only with respect to services provided after written notice of the increase
is mailed to Clients. If Clients choose not to consent to the increased rates, Clients may
terminate MEC's services under this agreement by written notice effective when received
by MEC. Clients acknowledge that MEC has made no promises about the total amount of
MEC's fees to be incurred by Clients under this agreement.
6. COSTS.
Clients will pay all "costs" in connection with MEC's consultation to Clients under this
agreement. Costs will be advanced by MEC and then billed to Clients unless the costs can
be met out of Clients retainers that are applicable toward costs. Costs include, but are not
limited to, engineering services, accident reconstruction, deposition and trial costs
(preparation and testimony),, graphics and exhibit preparation, travel expenses, inspection
costs, messenger/courier service fees, expedited package delivery (e.g. FedEx/UPS),
Additional costs are listed on the MEC Fee Schedule.
7, RETAINER FOR PLAINTIFF AND CRIMINAL CASES.
Clients will pay to MEC an initial retainer of$3000.00, to be received by MEC before
any work will commence on case, and to be applied against costs incurred. by Clients.
This amount will be deposited by MEC. Under the terms of this agreement, should the
total amount incurred by Clients for costs be less than the amount of the initial retainer,
the difference will be refunded to Clients.
8. STATEMENTS AND PAYMENTS.
MEC will send Clients monthly statements indicating expert's fees and costs incurred and
their basis. It is the responsibility and duty of the Client to pay any and all balances in full
within 30 days after the statement is mailed. MEC reserves the right to not appear for
testimony and to cease work on behalf of Clients that have not kept accounts current.
9. FEE DISPUTES. I
Any concerns to the amount or other billing contents of a billing statement must be
brought to the attention of MEC within twenty-one (21) days after the billing date. Time
spent discussing the billing will not be charged to the Clients.
In the event MEC's billed charges to client remain unpaid more than ninety (90) days
after invoicing for the same and MEC finds it necessary to file suit to collect the balance
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engineering Corp.
due thereon, MEC shall be entitled to all costs of collection, including, but not limited to
reasonable attorneys fees,prejudgment interest and costs.
10. DISCLAIMER OF GUARANTEE.
Nothing in MEC's statements and nothing in this agreement will be construed as a
guarantee or promise with regard to the outcome of Clients' matter. MEC makes no such
promise, rather MEC's comments about the Clients' matter are expression of opinion
only.
11. EFFECTIVE DATE OF AGREEMENT.
The effective date of this agreement will be the date when it is executed by both of the
parties to do so.
The foregoing is agreed to by:
Client:
Date:
t/tJ
MEC:
Date: April 2,2013
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