Loading...
Contract - Mattern - 2008-08-28 AGREEMENT FOR ALTERNATE DISTRICT ENGINEER THIS AGREEMENT is made and effective as of August 28, 2008 between the Costa Mesa Sanitary District, a sanitary district ("District") and Bruce Mattern, a professional engineer ("Consultant"). In consideration of the mutual covenants and conditions set forth herein the parties agree as follows. Recitals WHEREAS, District's Board of Directors has enacted an Alternate District Engineer ordinance (CMSD Operations Code Section 3 01 045) providing for the appointment of such an Alternate District Engineer when District's Engineer has a conflict requiring that he disqualify from approving or acting upon an engineering matter and WHEREAS the Board of Directors has considered the qualifications of Bruce Mattern for the Alternate District Engineer position and found him qualified to perform said services; and WHEREAS the parties desire to set forth the further terms and conditions governing Bruce Mattern s serving as Alternate District Engineer NOW THEREFORE, the parties hereto further agree as follows: • 1 TERM This Agreement shall commence on August 28 2008 and shall remain and continue in effect until terminated. 2. SERVICES Consultant shall perform the tasks required of the District Engineer whenever the District Engineer has determined that he has a conflict of interest that disqualifies him from performing those duties. Also within the scope of this contract is the Consultant's preparation of a review of the District's annual capital improvement program (hereinafter 'CIP") for which Consultant agrees he will make a presentation to the Board of that review at a scheduled Board meeting 3. PERFORMANCE Consultant shall at all times faithfully competently and to the best of his ability experience and talent perform all tasks described herein. Consultant shall employ at a minimum, generally accepted standards and practices utilized by persons engaged in • providing civil engineering services as are required of Consultant hereunder in meeting his obligations under this Agreement. 4. DISTRICT MANAGEMENT District's Treasurer shall represent District in all matters pertaining to the • administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. 5. PAYMENT (a) The District agrees to pay Consultant monthly in accordance with the payment rates, terms and schedule of payment as set forth in Exhibit A" attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. (b) Consultant will submit invoices to District's Treasurer for actual services performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non- disputed fees If the District disputes any of Consultant's fees it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE • (a) The District may at any time for any reason, with or without cause suspend or terminate this Agreement, or any portion hereof by serving upon the Consultant at least fifteen (15) days prior written notice Upon receipt of said notice the consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise If the District suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the District shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the District. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the District pursuant to Section 5. 7 DEFAULT OF CONSULTANT (a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, District shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the • Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. 2 (b) If the District Treasurer or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The • Consultant shall have five (5) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance In the event that the Consultant fails to cure its default within such period of time the District shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law in equity or under this Agreement. 8. OWNERSHIP OF DOCUMENTS (a) Consultant shall maintain complete and accurate records with respect to all approvals and reviews given pursuant to this Agreement, including, but not limited to the CIP and other such information required by District that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted engineering and accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of District or its designees at reasonable times to such books and records, shall give District the right to examine and audit said books and records, shall permit District to make transcripts therefrom as necessary. and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records together with supporting documents shall be maintained for • a period of three (3) years after receipt of final payment. Alternatively District may require that such records be kept at District. (b) Upon completion termination or suspension of this Agreement all other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the District and may be used, reused or otherwise disposed of by the District without the permission of the Consultant. With respect to computer files, Consultant shall make available to the District, at the Consultant's office and upon reasonable written request by the District, the necessary computer software and hardware for purposes of accessing compiling transferring and printing computer files. 9. INDEMNIFICATION (a) Indemnification for Professional Liability When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law Consultant shall indemnify protect, defend and hold harmless District and any and all of its officials, employees and agents ("Indemnified Parties") 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 Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the • performance of professional services under this Agreement. 3 (b) Indemnification for Other Than Professional Liability Other than in the performance of professional services and to the full extent permitted by law Consultant shall indemnify defend and hold harmless District, and any and all of its employees, • officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, loses, expenses or costs of any kind whether actual, alleged or threatened, including attorneys fees and costs court costs, interest, defense costs and expert witness fees) where the same arise out of are a consequence of or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents employees or subconsultants of Consultant. (c) General Indemnification Provisions. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subconsultant or any other person or entity involved by for with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of District to monitor compliance with these requirements imposes no additional obligations on District and will in no way act as a waiver of any rights hereunder This obligation to indemnify and defend District as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section. 10. INSURANCE • Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit 'B' attached to and part of this Agreement. (A certificate of insurance should be attached.) It is acknowledged that Consultant does not have professional liability (errors and omissions) insurance. Consultant shall be covered to the extent reasonably available, by District's insurance carrier (or Joint Powers Insurance Authority) to the same extent as District Engineer Consultant represents that he has no employees and, therefore, will not be required to provide proof of worker's compensation coverage Should consultant hire employee(s), proof of worker's compensation insurance shall be provided to District forthwith. 11 INDEPENDENT CONSULTANT (a) Consultant is and shall at all times remain as to the District a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Notwithstanding said independent contractor status Consultant shall be considered an officer of the District when performing services as Alternate District Engineer and shall have the authority to provide official approvals and shall be entitled to any immunities conferred by the law to such officials • when so acting Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against District, or bind District in any manner 4 (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, District shall not pay salaries, wages, or other compensation to • Consultant for performing services hereunder for District. District shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder Consultant is not an employee and is not entitled to worker's compensation benefits and is not entitled to District pension benefits 12. LEGAL RESPONSIBILITIES The Consultant shall keep informed of state and federal laws and regulations which in any manner affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 13. UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award terms or implementation of this Agreement, including any method of coercion confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, directly or indirectly from Consultant, or from any officer employee or agent of • Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity 14 NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member officer or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof for work to be performed in connection with the Project performed under this Agreement. 15. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without District's prior written authorization Consultant, its officers, employees, agents or subconsultants, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work • performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court order shall not be considered 'voluntary' provided Consultant gives District notice of such court order or subpoena. 5 (b) Consultant shall promptly notify District should Consultant, its officers employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for • admissions, or other discovery request, court order or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Consultant. However District's right to review any such response does not imply or mean the right by District to control, direct, or rewrite said response. 16. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery or (iii) mailing in the United States Mail, certified mail, postage prepaid return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice To District: Costa Mesa Sanitary District 628 West 19th St Costa Mesa, California 92627 • Attn District Clerk To Consultant: Bruce D Mattern, PE, TE BDM Consulting 9441 Harcourt Circle Huntington Beach California 92646 17 ASSIGNMENT The Consultant shall not assign the performance of this Agreement, nor any part thereof nor any monies due hereunder without prior written consent of the District. Because of the personal nature of the services to be rendered pursuant to this Agreement, only Bruce Mattern shall perform the services described in this Agreement. Bruce Mattern may use assistants, under its direct supervision, to perform some of the services under this Agreement. Consultant shall provide District fourteen (14) day's notice prior to the departure of Bruce Mattern from Consultant's employ Should he/she leave Consultant's employ the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this agreement, Consultant's sole compensation shall be payment for actual services performed up to and including the date of termination or as may be • otherwise agreed to in writing between the Board of Directors and the Consultant. 6 18. LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. Consultant has a professional engineer's license for California. CE 19388 His other credentials are set forth in Exhibit C 19. GOVERNING LAW The District and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 20 ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. • 21 AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder 22. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto this Agreement shall control unless a contrary intent is clearly stated 23. MODIFICATION This Agreement may not be modified except by a writing signed by persons with legal authority to execute the same on behalf of the parties. • IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed the day and year first above written. • COSTA MESA SANITARY DISTRICT CONSULTANT President Signature (Q-M-V1 _yvt_c_,414Ark, Secretary Typed Name 21"/PtCetLJ ATTEST 'Title knit- Dist t Clerk APPROVED AS TO FORM: District Counsel • 8 EXHIBIT A • DD 8DM CONSULTING Bruce D. Mattem, PE, l E 9441 Harcourt Circle Huntington Beach, CA 92646 (714) 962 1136 Career Objective: My Career objective is to continue applying my administrative, supervisory and project management skills by using my municipal agency and consulting experience to achieve the goals and objectives of any organization to whom I provide services. Registrations: Professional Engineer: California, CE19388 Traffic Engineer: California, TE 0559 Education: • MS, Civil Engineering (Environmental Major,Transportation and City Planning Minor), 1977 California State University Long Beach,CA BS, Civil Engineering, 1966, Michigan Technological University Houghton, MI Special Training: Certificate, Executive Management Training, University of California Irvine, 1980 Certificate, Government Executive Seminar,The Menniger Foundation, 1982 Urban Public Works Administration, ICMA, 1985 Leader Effectiveness/Adaptability Seminar, 1987 Certificate,Quality Control Technician Reviewer,Boyle Engineering Corporation, 1996 Certificate, Project Management Training, Modules I and II, Boyle Engineering Corporation 1999 Affiliations: Fellow American Society of Civil Engineers (Life Member) Fellow Institute of Transportation Engineers Past Member,American Public Works Association Past Board of Directors,Consulting Engineers and Land Surveyors of California Former Member, Orange County Traffic Engineering Council Professional Experience: 7/2003 to Present—City of San Gabriel • City Engineer and designated Traffic Engineer EXHIBIT B • INSURANCE Consultant shall provide proof of vehicle insurance and a current copy thereof shall be kept on file with the District Clerk. • • :i1 OBI/l0 ®a PROOF OF INSURANCE g'- Interinsurance Exchange of the R""O Automobile Club Named Insured Policy Number G 1194293 MATTERN,BRUCE D AND LLOYDELL Effective Date: 11-29-07 Expiration Date 11-29-08 j This policy provides at least the minimum amounts of liability insurance i required by the CA VEH CODE SECTION 16056 for the specified vehicles and named insureds and may provide coverage for other persons and other vehicles as provided by the insurance policy. _ 1a VEHICLES ON POLICY YEAR MAID: VEH I.D. 2003 HYUND 10v01WF25553A746341 2005 BENZ WDBRF40JX5F612134 1999 DODGE 2B4FP25BOXR338555 2007 HYUND MMUN12D67U633257 � a DRIVERS ON POLICY o MATTERN,BRUCE D F MATTERN,LLOYDELL BAHRAM,PAIGE L • __—BAHRRMIrNATA6H61vARIANA BAHRAMI,DEVON