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Lilburn Corporation-2006-12 � _U °1) LILBURN CORPORATION PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Agreement') is entered into on M.4y 9 , 200il� between Lilburn Corporation, a California Corporation (hereinafter designated "Lilburn"), and the City of Grand Terrace, (hereinafter designated "Client"). WHEREAS, Client finds it advisable to obtain the assistance of Lilburn to provide certain professional services more fully described in Section 1 below for purposes of assisting Client. NOW THEREFORE, in consideration of the 'mutual promises, covenants and, conditions contained herein, and for valuable consideration, it is understood between the parties as follows: 1. SCOPE Lilburn agrees to perform the services specified in Exhibit A- Scope of Work, Schedule and Cost (hereinafter designated as the "Services"), attached hereto, and incorporated by reference, within the time specified in Exhibit A. In the event of any inconsistency between Exhibit A and the terms of this Agreement,the terms of this Agreement shall control. 2. COMPENSATION Client hereby agrees: a. To pay Lilburn as full compensation for the performance of the Services the amounts determined in accordance with Exhibit A. Client shall,within thirty(30) days following receipt of each invoice submitted by Lilburn; make payment to Lilburn of the amounts due pursuant to that invoice. Amounts not paid within 60 days of mailing of the invoice to Client shall bear interest at a rate of 12%per year, until paid in full. b. The parties mutually agree that the total amount of the compensation 1 to be paid for Services shall not exceed the cost estimate set forth in Exhibit A. Lilburn shall not proceed with further services until it provides Client with an estimate of any additional charges necessary to complete such services and Client provides written authorization for such additional:charges. C. Lilburn shall, at its discretion, have;the right to suspend work, until full payment on services, if the Client has any monthly invoice more than 60 days past due. a "4 i 3. TERM This Agreement shall commence on the date written above and shall continue(until the earliest of the following: a. The date on which Lilburn notifies Client in writing that it has completed all of the services required hereunder; b. Five(5)working days after written notice by either party of substantial failure by the other party to fulfill its obligations under this Agreement in a timely manner through no fault of the terminating party; or C. Unless completed or extended,this contract will terminate automatically three(3) years from the date of execution. 4. PERSONNEL/STANDARD OF PERFORMANCE a. Lilburn shall employ, supervise, direct and control all persons necessary for the performance of the services. Lilburn shall have the right to engage such subcontractor as Lilburri deems necessary to perform the Services. b. Lilburn shall perform the Services to be furnished by it hereunder in"accordance with customarily accepted good professional practices. No other warranty, express or implied, is included in this Agreement. Lilburn shall not be precluded from rendering similar services to any other person or entity. C. Lilbum shall commence the performance of its services under this Agreement as of the date of execution hereof and shall diligently proceed in accordance with the project schedule, subject to delays for causes beyond the reasonable control of Lilburn, including but not limited to changes in the design of the Project,the failure of Client to perform its obligations in a timely fashion, and/or inaction of government agencies. 5. CHANGES a. Client may, at any time under this Agreement, by written direction, issue additional instructions, require changes, modify or add services, or direct the omission of services. Exhibit A shall be modified in writing to reflect the changes, modifications, additions or omissions contained in the written direction. An equitable adjustment will be made in price or time of performance or both, if a change ordered by Client increases or decreases the cost to Lilburn by more than $200.00. The equitable adjustment shall be specified, and if possible, the price fixed at the time of the issuance of written direction for the change. . I b. At the request of Client, Lilburn shall provide testimony of the results or other matters covered by this Agreement at public presentations, hearings and at trials. The fee for 2 s such service will be determined, invoiced and paid in accordance with the applicable provisions of this Agreement. 6. TERMINATION OR DELAY a. Either party shall have the right, at any time, to terminate the performance of further Services hereunder upon five(5) days written notice to the other party. b. In the event of termination of Services this Agreement shall remain in effect until the parties have complied with all obligations hereunder, including the obligation to make payment for Services performed, to and including the date of termination of the Services, and for any demobilization provided for hereby, whereupon all provisions of this Agreement, except those intended by their terms to survive termination of this Agreement, shall terminate. C. Client shall notify Lilburn if the Work is terminated or deferred to an 'indefinite or specified date. The deferment shall not exceed six months without the consent of Lilbum. If deferred, the Work may thereafter be terminated. d. In the event that the Project is deferred or terminated by Client, within 30 days Lilburn shall be paid: (1) the price earned for work totally completed and accepted; (2) a proportionate part of the price allocated to the portion of any work partially completed; (3) the reasonable cost incurred by Lilburn in securing and protecting the work in progress against loss, damage or deterioration; and (4) mobilization costs; standby costs, cancellation or deferment charges of suppliers; and the cost of materials and equipment which would have been consumed by the work which cannot be sole or used for a later project. e. Following deferment and notice to resume given by Client to Lilbum'in writing, Lilburn shall resume the Services with an equitable adjustment, if required, in the price and time of completion, determined as in the case of changes in Section 5. 7. CLIENT REPRESENTATIVES For purposes hereof, the authorized representative(s) of Client shall be deemed to be Mr. Gary Koontz, Community Development Director, or such other person or persons as shall be designated by Client to Lilburn. 8. DUTIES OF CLIENT To allow Lilburn to render the services required hereunder, Client shall, at its expense and in a timely manner: a. provide such information concerning the Project as Lilburn may require to enable Lilburn to complete the Services; 3 j. i b. promptly inform Lilburn of any 'pending or confirmed changes in the Project design; C. promptly review all documents and materials submitted to Client by.Lilburn for Client's comment to avoid unreasonable delays in the progress of the Services; and d. promptly notify Lilburn of any,fault or defect in any way relating to the performance of Lilburn's Services hereunder. 9. INDEPENDENT JUDGMENT Y Client understands that Lilburn's services may invite criticism, controversy, and litigation that may be motivated by public or private opposition to the Project. Client agrees that any such criticism, controversy, or litigation with respect to Lilburn's services will not cause Client to s, withhold payments due to Lilburn hereunder or;be the basis for any suit, action,,request for indemnification, or other claim by Client against Lilburn. Client fiu ther agrees that the failure of Client or any governmental agency or third person to agree with Lilburn's analyses, findings, conclusions, or recommendations shall not be construed as a failure on the part of Lilburn to perform its obligations under this Agreement. 10. INDEPENDENT CONTRACTOR Lilburn shall at all times exercise complete direction and control of the Services. Lilburn shall, for all purposes of this Agreement, be deemed to be an independent contractor and nothing in this Agreement shall be deemed to constitute Lilburn, or Lilburn's employees, as an agent, employee, or legal representative of Client. 11. KNOWN RISKS Lilburn understands and accepts the actual and potential hazards and risks associated with the Client's work area. 12. CONFIDENTIALITY a. Lilburn acknowledges that Lilburn, its employees, agents and subcontractors will be granted access to certain Confidential Information (as hereinafter defined) of Client in the course of performing the Services of this Agreement. For purposes of this Agreement, the term Confidential Information shall mean all records and information with respect to representation of Client that are not a matter of public record or available in the published literature, including, without limitation, internal draft reports. For purposes of this Agreement, documents prepared in final form by Lilburn for submission by Client to a government agency(including final forms of draft documents to be submitted to a government agency) are not included within the meaning of Confidential Information. Lilburn shall hold in strictest confidence, and shall not disclose or permit the disclosure to any person or entity other than Client or Client's attorney, or make any 4 I i unauthorized use of, any Confidential Information, without the prior consent of Client, which consent may be withheld by Client in its sole discretion. b. The confidentiality obligations in Section 12(a) shall not apply to the extent that disclosure is necessary in connection with (i) performance by Lilburn, and its, agents and subcontractors, of Services hereunder which include, but are not limited to,; authorized communications with the regulatory agencies, relative to Services performed under this Agreement; (ii) compliance with any court order or other governmental directive;! and/or (iii) compliance with professional standards of conduct for the preservation of public-safety, health and welfare. Lilburn shall give Client at least five (5) days advance written notice of disclosure of Confidential Information pursuant to this Section. C. Lilburn may retain copies of such Confidential Information for its own records. 13. UNFORSEEN EVENTS i In the event that Lilburn is delayed by force majeure, Lilburn shall be entitled to an equitable extension of time. The term "force majeure" as used herein shall include circumstances which interfere with the parties ability to comply with this Agreement and are unforeseen and beyond the parties control, including, but not limited to: acts of God; legislation; orders of any court; acts of regulatory agencies or administrative bodies having jurisdiction with respect to the performance of this Agreement; acts of civil or military authority; acts of war or the public enemy; terrorism; insurrections; riots; interruptions to transportation; cave-in or 'other mine disasters; fire; flood, windstorm; earthquake; explosion; delay or failure of usual;sources of supply, water, power, fuel, or other materials; labor disputes; and other causes not; within the reasonable control of the parties hereto whether or not'similar to the occurrences specifically enumerated above, which other occurrences could not have reasonably been avoided by the parties. 14. INDEMNITY a. Lilburn shall indemnify and hold Client harmless against all claims and actions, and all expenses, including, but not limited to attorneys' fees, incidental to such claims or actions, based upon or arising out of damages or injuries to persons or property caused by the negligence, gross negligence, willful misconduct, or breach of any provision of this Agreement, by Lilburn or anyone acting under its direction or control or on its behalf in the course of its performance under this Agreement. b. Lilbum's aforesaid indemnity agreement shall not be applicable to any liability based upon willful acts or gross negligence or negligence of Client, due to any 1pbllution or contamination on client's_site, and/or upon use of or reliance on information supplied by Client or on behalf of Client to Lilburn in preparation of any report, study, or other written document. In addition, in no event shall Lilburn be responsible for any form of consequential damages, including,but not limited to loss of sales, loss of profits, and attorneys' fees thereon. 5 • f ' i C. Notwithstanding the above, under no circumstances shall Lilburn's liability exceed the amount of this Agreement, as set forth in Exhibit A. d. Client shall indemnify and hold harmless Lilburn against all claims and actions, and all expenses, including, but not limited to attorneys' fees, incidental to such claims or actions, based upon or arising out of(i) damages or injuries to persons or property caused by or attributable to the gross negligence, willful misconduct, or breach of any provision of this Agreement by Client or anyone acting under Client's direction or control or on its behalf in the course of its performance under this Agreement, and (ii) claims, actions, or demands for environmental liability arising from, or in relation to, any condition (not caused by the negligence of Lilbum or anyone acting under its authority) on, under, or in connection with Client's real property or relating to operations conducted by Client. e. Where any claim results from the gross negligence, willful misconduct, or breach of any provision of this Agreement, by both Client and Lilbum, the amount of such claim for which Client or Lilburn is liable as indemnitor under Section 14 shall equal the proportionate part that the amount of such claim attributable to such indemnitor's gross negligence, willful misconduct, or breach of any provision of the Agreement, bears to,the amount of the total claim attributable to the joint gross negligence, willful misconduct, or breach of any provision of this Agreement. f. The above indemnity provisions shall survive the termination of this Agreement. 15. ATTORNEY FEES In the event that a lawsuit is brought by either party to enforce this Agreement, the prevailing party shall be entitled to recover all the costs, expenses and reasonable legal fees which the court may deem proper. 16. NOTICE Any notice or delivery of information herein contemplated to be given to Lilbum shall be sufficient if given in writing by certified or registered mail, or if delivered personally, and any payment herein provided to be paid to Lilburn shall be deemed made when the payment clears the bank, and in either case, addressed to: Lilbum Corporation Attn: Cheryl A. Tubbs,Vice President of Operations 1905 Business Center Drive San Bernardino, CA 92408 or to such other address as Lilburn may designate to Client in writing. Any notice or delivery of information herein contemplated to be given to Client shall be sufficient if given in writing by certified or registered mail, or if delivered personally to Client, 6 i i and any invoices herein provided to be delivered to Client, shall be deemed delivered when mailed to Client, and in either case, addressed to: City of Grand Terrace Community Development Department Attn: Mr. Gary Koontz 22795 Barton Road' Grand Terrace, CA 92313-5295 or such other address as Client may designate to Lilburn in writing. Service of notice by mail shall be deemed effective and complete 48 hours after ,ithe time of posting and mailing thereof, with postage prepaid, and addressed as aforesaid. Peisonal service of notice shall be deemed effective and complete at the time of delivery. 17. CHOICE OF LAW This Agreement shall be enforceable in accordance with the laws of the State of California. 18. ASSIGNMENT Neither party shall assign this Agreement without the written consent of the other party. This Agreement is and shall be binding upon and benefit the parties hereto and their respective successors and assigns. 19. COMPLETE AGREEMENT/AMENDMENT This Agreement contains the entire agreement between Lilburn and Client and no oral or written agreement, promise, proposal, statement, letter of intent or representation not contained herein shall be binding on Lilburn or Client. After the Effective Date of this Agreement, any work commenced or payments made under a letter of intent shall be governed by this Agreement. 20. MODIFICATION No amendment or modification of this Agreement shall become effective until set forth in writing and duly executed by Client and the president of Lilburn, or a manager 'of a Lilburn office. 21. WAIVER Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of any subsequent breach. 7 I i 22. SEVERABILITY If any part of this Agreement shall be adjudicated to be unenforceable, then the remainder of the Agreement shall continue to be of full force and effect as if such portion were not a part hereof. 23. EXHIBITS All exhibits or attachments to which reference is made are deemed incorporated in this Agreement whether or not actually attached. 24. CUMULATIVE REMEDIES No remedy or election herein shall be deemed exclusive but shall whenever possible be cumulative with all other remedies at law or in equity. 25. COUNTERPARTS. This Agreement may be signed in counterparts, and shall be deemed effective when both parties have signed the Agreement, or any counterpart thereof. .26. CAPTIONS The captions in this Agreement shall have no effect upon the construction of this Agreement. IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement: LILBURN CORPORATION By. Title: S�O Date: CLIENT By: Title: Date: S 3 EXHIBIT A-SCOPE OF-SERVICES i The City of Grand Terrace has certified a Final Environmental Impact Report (EIR) for the Grand Terrace Outdoor Adventure Center, a large commercial'recreation project. Prior to development approvals for the project, the City intends to relocate an existing water line owned and operated by the City of Riverside. In accordance with Mitigation Measures adopted in the Final EIR,the City is required to conduct a Burrowing owl clearance survey before construction begins for the water line relocation. Lilburn Corporation will manage the survey, to be completed by Natural Resources Assessment, Inc. for a fixed fee of One Thousand Dollars($1,000.00). The survey will be completed by May 31, 2006. I 9