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HomeMy WebLinkAbout2013 CON AK Company - Consulting Services SB 90AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND AK & COMPANY THIS AGREEMENT is entered into this 31st day of October , 2013, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and ak & company (the "CONSULTANT"). RECITALS WHEREAS, Article XIIIB of the State of California's Constitution allows local agencies to recover costs associated with provision of certain activities that have been mandated by the State. WHEREAS, the CITY has determined that hiring a consultant to prepare and file mandated cost reimbursement ("SB 90") claims is the most cost effective and efficient method to complete this process. WHEREAS, the CITY desires to employ a CONSULTANT to collect data and prepare and submit SB 90 claims to the State of California. WHEREAS, the CITY has determined that the CONSULTANT is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. SCOPE OF SERVICES. The CONSULTANT shall prepare and file SB 90 claims services as set forth in the attached Exhibit "A" in addition to the following services: A. Prepare and submit FY 2012-2013 SB 90 Annual Claims to the State Controller's Office (SCO), according to the SCO FY 2012-13 Annual Claiming Instructions, by February 18, 2014; B. If necessary, prepare and submit SB 90 Amended Claims to the SCO by February 18, 2014; and 1 City's Standard Agreement —2011 revision C. Prepare and submit SB 90 New Claims according to Claiming Instructions issued during FY 2013-2014. New Claims are those with a claim due date other than February 18, 2014. The CONSULTANT shall inform the Project Coordinator of the data and documentation necessary for timely claims submission. The CONSULTANT will presume that all data provided by the CITY is correct and complete. The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONSULTANT shall appear at meetings to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services. Preparation of Incorrect Reduction Claims is not included in the Scope of Services. 3. CITY'S DUTIES. The CITY shall cooperate with the Consultant in the performance of this Agreement as set forth in the attached Exhibit "B". CITY agrees to be responsible for the accuracy of the data provided to the CONSULTANT. The CITY shall provide Consultant -requested data within three (3) weeks of the CITY'S receipt of a written request for such data from the CONSULTANT. 4. PROJECT COORDINATION AND SUPERVISION. The Director of Finance is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Anita Kerersi is designated as the Project Director for the CONSULTANT. 5. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be a fixed fee of six thousand eight hundred dollars ($6,800). The fee shall be payable in two equal installments: three thousand four hundred dollars ($3,400) shall be remitted within thirty (30) business days from receipt of an invoice following the execution of this Agreement; three thousand four hundred dollars ($3,400) shall be remitted within thirty (30) business days from receipt of an invoice following the filing of the Annual Claims, provided that work is accomplished consistent with Exhibit "A", as determined by the CTTY. CITY will pay CONSULTANT an additional fee of $250 per week or portion thereof for data received by CONSULTANT from the CITY after the agreed upon deadline, provided that the CITY receives a written request for such data from the CONSULTANT at least four (4) weeks prior to such deadline. 2 City's Standard Agreement —2011 revision The CONSULTANT shall maintain all books, documents, papers, employee timesheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 6. ACCEPTABILITY OF WORK. The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the CITY or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the CITY shall each prepare a report which supports their position and file the same with the other party. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 7. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on October 31 , 2013. The duration of this Agreement is for the period of October 31 , 2013 through September 30 , 2014. Completion dates or time durations for specific portions of the Project are set forth in Exhibit "A". 8. WAIVER OF SUBMISSION OF CLAIMS. The CITY may waive submission of claims pursuant to the specific services listed in Section 2A, 2B, and 2C of this Agreement. At the CITY'S discretion, and pursuant to a specific State Claiming Instruction, the CITY may instruct Consultant not to file a specific claim or claims. The CITY must provide the instruction, in writing, to the CONSULTANT at least thirty (30) business days prior to the due date of the claim, provided that the CITY receives written notice from the CONSULTANT at least sixty (60) business days prior to the due date of such claim. CITY will expect Consultant to file any pertinent claim that meets the minimum limit set by the State. If a submission of claims is waived, the CITY shall pay the CONSULTANT for all work completed prior to the date of the waiver. The CONSULTANT shall be paid at the rate of $150 an hour. In no event shall this payment exceed three thousand four hundred dollars ($3,400). 9. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Claims, Amended Claims, Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and CONSULTANT thereby expressly waives and disclaims any copyright 3 City's Standard Agreement —2011 revision in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT'S written work product for the CITY'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Section 9, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 10. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT' S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or SUBCONSULTANTS, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its SUBCONSULTANT(S) shall require the SUBCONSULTANT(S) to adhere to the applicable terms of this Agreement. 11. CONTROL. Neither the CITY nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as herein set forth, and the CONSULTANT or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY, it being understood that the CONSULTANT its agents, servants, and employees are as to the CITY wholly independent CONSULTANT, and that the CONSULTANT'S obligations to the CITY are solely such as are prescribed by this Agreement. 12. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and 4 City's Standard Agreement —201 I revision federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 13. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 14. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -paragraph will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 15. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and 5 City's Standard Agreement —2011 revision selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 16. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 16, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 16. 17. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Notwithstanding the language above, the CONSULTANT will not be liable for unified or late claims resulting from data not provided by the agreed upon deadlines, provided that the CITY received a written request for such data from the CONSULTANT at least four (4) weeks prior to such deadline. The CONSULTANT will not be liable for consequential, special, indirect, or punitive damages. 6 City's Standard Agreement —2011 revision 18. AUDIT. In the event of an audit, the CONSULTANT shall provide workpapers and records to SCO auditors. Any State disallowance of amounts paid to the CITY under any claim for whatever reason is the CITY'S responsibility. Upon request by the CITY, CONSULTANT shall assist CITY in defending claims at the desk audit level, provided such a disallowance amounts to at least ten percent (10%) of the full claim amount. If travel is required, the CITY shall reimburse the CONSULTANT for travel expenses and mileage at the CITY's rate in effect at the time of the travel, provided the travel is approved by the CITY prior to the travel. 19. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from and against all claims. demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 20. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of $2,000,000 per occurrence and $4,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. The policy shall name the CITY and its officers, agents and employees as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. 7 City's Standard Agreement —2011 revision E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY' S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. 21. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney' s fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attomey's fees incurred by the prevailing party. 22. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the 8 City's Standard Agreement —2011 revision controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 23. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 30-day's written notice to the CONSULTANT. During said 30-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished Claims, Amended Claims, Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 9. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 24. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: 9 City's Standard Agreement —2011 revision To CITY: Director of Finance Finance Department City of National City 1243 National City Boulevard National City, CA 91950-4301 To CONSULTANT: Anita Kerersi Worlow Principal ak & company 3531 Kersey Lane, Suite M Sacramento, CA 95864 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 25. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. II If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph 22 by the CONSULTANT. 26. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 10 City's Standard Agreement —201 I revision 1720.4, and 1771. CONSULTANT is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 27. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, 11 City's Standard Agreement -2011 revision and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY AK & COIIQPANY Leslie DeewCity Manager OVED AS TO FORM: C1 City Atto ilva By: Anita Kerez Wbrlow Principal 12 City's Standard Agreement -2011 revision EXHIBIT A SERVICES TO BE PERFORMED BY CONSULTANT NEW CLAIMS — CONSULTANT shall perform the following professional services: a Prepare and submit SB 90 New Claims to the State Controller's Office (SCO), according to the SCO issuance of New Claiming Instructions, as specified in Section 2C. b. Advise CITY staff regarding reliable and defensible types of source documentation. c. Establish a workable timeframe and plan for data to be collected by staff and submitted to CONSULTANT in order to submit the claims prior to the SCO deadlines. d. Include both direct and indirect costs in SB 90 claims submitted by CONSULTANT. CONSULTANT may choose to use either the SCO ten percent (10%) indirect cost rate or to calculate a higher rate. e. CONSULTANT will collect relevant salary and expenditure data to prepare an Indirect Cost Rate Proposal (ICRP) for all CITY departments included in CITY's claims. If the required information is not provided by the CITY within three (3) weeks of a written request for such information from the CONSULTANT, CONSULTANT will use the SCO 10%. f. Complete all eligible claims and provide C1TY with hard copies of the claims submitted. g. Deliver all signed claims to the SCO by each new claim deadline. h. Provide to C1TY a copy of the Claims Transmittal signed by the SCO to acknowledge receipt ANNUAL AND AMENDED CLAIMS — CONSULTANT shall perform the following professional services: a By February 18, 2014, prepare and submit FY 2012-2013 SB 90 Annual Claims to the State Controller's Office (SCO), according to the SCO FY 2012-2013 Annual Claiming Instructions, as specified in Section 2A. b. Prepare and submit amended SB 90 claims, as necessary, to the State Controller's Office (SCO), as specified in Section 2B. c. Schedule at least one site visit per year to discuss eligible programs with CITY's Project Coordinator, and conduct meetings with individual departments affected by each reimbursable mandate program. d. Advise CITY staffregarding reliable and defensible types of source documentation. e. Establish a workable timeframe and plan for data to be collected by staffand submitted to CONSULTANT in order to submit the City's claims prior to the SCO deadlines. f. Include both direct and indirect costs in SB 90 claims submitted by CONSULTANT. CONSULTANT may choose to use either the SCO ten percent (10%) indirect cost rate or to calculate a higher rate. 13 City's Standard Agreement —2011 revision g. CONSULTANT will use relevant salary and expenditure data to prepare an Indirect Cost Rate Proposal (ICRP) for all City departments included in City's claims. If the required information is not provided by the CITY within three (3) weeks of a written request for such information from the CONSULTANT, CONSULTANT will use the SCO 10%. h. Complete all eligible claims and provide CITY with hard copies of the claims submitted. i. Deliver all signed claims to the SCO by specified deadlines. j. Provide to CITY a copy of the Claims Transmittal signed by the SCO to acknowledge receipt of claims. k. Advise CITY of SCO issues associated with any SB 90 claims prepared and submitted by CONSULTANT. 1. If necessary, act as a Sacramento liaison with the SCO in desk reviews or field audits for claims that were prepared and submitted by CONSULTANT. 14 City's Standard Agreement —201 1 revision EXFIIIT B CITY'S DUTIES CITY'S duties in performance of this AGREEMENT: a Coordinate all site visits, monitor stab activities and work with the CONSULTANT to collect and obtain necessary records, data and documentation needed by the CONSULTANT to prepare and submit SB 90 claims to the State Controller's Office (SCO) by the required deadlines. b. Provide to the CONSULTANT all necessary data within three (3) weeks of the CITY'S receipt of a written request for such data from the CONSULTANT. c. Ensure that Annual Claims data is provided in its entirety to the CONSULTANT no later than Friday, November 8, 2013 . d. Return signed FAM-27 signature pages to the CONSULTANT no later than five (5) business days before any filing deadline, provided that the CITY receives a written request for such signature pages from the CONSULTANT at least ten (10) business days prior to any such deadline. e. Respond to the CONSULTANT'S inquiries within a reasonable timefrarne. 15 City's Standard Agreement —2011 revision CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk November 4, 2013 Ms. Anita Kerersi Worlow ak & company 3531 Kersey Lane, Suite M Sacramento, CA 95864 Dear Ms. Kerersi Worlow, On October 31, 2013, an Agreement was entered between the City of National City and ak & company. We are enclosing for your records a fully executed original Agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosure cc: Finance Dept.