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HomeMy WebLinkAboutWestern Seniors Housing Inc; 2015-01-30;AGREEMENT FOR EXCLUSIVE MANAGEMENT AGENT SERVICES Western Seniors Housing, Inc. THIS AGREEMENT is made and entered into as ofthe _ day of 2015, by and between the CITY OF CARLSBAD, a chartered municipal corporatiDn, ("City"), and WESTERN SENIORS HOUSING, INC., a California Corporation ("Agent"). RECITALS A. City requires exclusive management agent services for the management and day-to-day operation of the Tyler Court Senior Apartments located at 3363 Tyler Street, Carlsbad, CA 92008. B. Agent has the necessary experience in providing exclusive management agent services, and has been selected as the best management agent as a result of a request for proposal process. C. Selection of Agent is expected to achieve the desired results in an expedited fashion. D. Agent has affirmed its willingness and ability to perform such work, and the management plan of said Agent has been incorporated into this Agreement by reference. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein. City and Agent agree as follows: 1. SCOPE OF WORK City retains Agent to perform, and Agent agrees to render, the management services set forth within this Agreement and according to the Management Plan approved by the Housing and Neighborhood Services Director ("Services"), and which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Agent will exercise the reasonable professional care and skill customarily exercised by reputable members of Agent's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM This Agreement will be effective until December 31, 2015. The agreement may be extended for two additional one (1) year periods, for up to two (2) additional years total, with approval of the City Manager subject to the terms and conditions stated in Section 5 below. The extension will be based upon a satisfactory review of Agent's performance. City needs, and appropriation of funds by the City Council as necessary. The parties will prepare a written amendment indicating the effective date and length of the extended agreement. 4. TIME IS OF THE ESSENCE Time is ofthe essence for each and every provision of this Agreement. 5. COMPENSATION The sole compensation which the Agent shall be entitled to receive for all services performed under this Agreement shall be a fee computed and payable monthly on the first day of each month. Upon execution of this Agreement, the Agent's monthly fee shall be the sum of Forty-Five Dollars ($45) per unit and a living unit for managerial staff shall be provided at no cost. If an extension is granted for an additional one (1) year or part thereof the City Manager may consider an increase in the monthly fee if appropriate but has the authority to deny any increase for the the extension term. 6. STATUS OF AGENT Agent will perform the Sen/ices in Agent's own way as an independent agent and in pursuit of Agent's independent calling, and not as an employee of City. Agent will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Agent to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Agent pursuant to the Agreement will be the full and complete compensation to which Agent is entitled. City will not make any federal or state tax withholdings on behalf of Agent or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Agent or its employees or subcontractors. Agent agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Agent or any Agent, employee, or subcontractor of Agent for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Agent. 7. SUBCONTRACTING Agent will not subcontract any portion of the Sen/ices without prior written approval of City. If Agent subcontracts any ofthe Services, Agent will be fully responsible to City for the acts and omissions of Agent's subcontractor and of the persons either directly or indirectly employed by the subcontractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Agent and City. Agent will be responsible for payment of subcontractors. Agent will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Agent's work unless specifically noted to the contrary in the subcontract and approved in writing by Agency. 8. OTHER AGENTS The City reserves the right to employ other agents in connection with the Services. 9. INDEMNIFICATION (a) Agent agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission ofthe Agent, any subcontractor of Agent, and/or anyone directly or indirectly employed by Agent or any subcontractor of Agent, or anyone for whose acts Agent or its subcontractors may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense Agent incurs or makes to or on behalf of an injured employee under the Agent's workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will sun/ive the expiration or early termination of this Agreement (b) The City agrees to maintain liability insurance coverage on the property. Agent shall not be responsible for the type, amount or sufficiency of insurance coverage on the property. 10 . INSURANCE Agent will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the sen/ices by Agent or Agent's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coveraqes and Limits. Agent will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Agent's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Agent pursuant to this Agreement are adequate to protect Agent. If Agent believes that any required insurance coverage is inadequate, Agent will obtain such additional insurance coverage, as Agent deems adequate, at Agent's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Agent's work for Agency). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Agent has no employees and provides, to Agency's satisfaction, a declaration stating this. 10.2. Additional Provisions. Agent will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. Likewise, Agent will be named as an additional insured on the City's General Liability policy. 10.2.2 Agent will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life ofthe Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providinq Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Agent will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Agent fails to maintain any of these insurance coverages, then City will have the option to declare Agent in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Agent is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Agent or deduct the amount paid from any sums due Agent under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 10.6 Crime Bond. The Agent shall provide a Crime Bond in the amount of $50,000 naming the City as co-obligee. 11. BUSINESS LICENSE Agent will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Agent will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Agent will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Agent will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Agent or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Agent or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Agent will have the right to make one (1) copy of the work product for Agent's records. 14. COPYRIGHTS Agent agrees that all copyrights that arise from the services will be vested in City and Agent relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Agent under this Agreement. For City: For Agent: Debbie Fountain Jennifer Jones Director of Housing and Neighborhood Vice President Services Western Seniors Housing, Inc. City of Carlsbad 18881 Von Karman Avenue 1200 Carlsbad Village Drive Suite 720 Carlsbad, CA 92008 Irvine, Ca. 92612 Phone No. 760.434.2815 Phone No. (949) 748-8200 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Agent's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Agent or any of Agent's employees, agents, or subcontractors. Should it be determined that disclosure is required. Agent or Agent's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Agent, for Agent and on behalf of Agents agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Agent further warrants that neither Agent, nor Agent's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Agent will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Agent will keep fully informed of federal, state and local laws and ordinances and regulations which in-any manner affect those employed by Agent, or in any way affect the performance of the Sen/ices by Agent. Agent will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Agent's sen/ices with all applicable laws, ordinances and regulations. Agent will be aware ofthe requirements ofthe Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Agent will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance ofthe Sen/ices the following procedure will be used to resolve any questions of fact or interpretation not othenwise settled by agreement between the parties. Representatives of Agent or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fonwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event ofthe Agents failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Agent by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, the City may terminate this Agreement upon written notice to Agent. Upon notification of termination. Agent has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. The City Manager will make a determination of fact based upon the work product delivered to City and ofthe percentage of work that Agent has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment ofthe Agreement. Either party upon tendering thirty (60) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Agent will assemble the work product and put it in order for proper filing and closing and deliver it to City. Agent will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Agent warrants that Agent has not employed or retained any company or person, other than a bona fide employee working for Agent, to solicit or secure this Agreement, and that Agent has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consider- ation contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty. City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Agent agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Agent acknowledges that if a false claim is submitted to City, it may be considered fraud and Agent may be subject to criminal prosecution. Agent acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Agent acknowledges that the filing of a false claim may subject Agent to an administrative debarment proceeding as the result of which Agent may be prevented to act as a Agent on any public work or improvement for a period of up to five (5) years. Agent acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a nght or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Agent and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Agent without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms ofthe Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. //// //// //// //// //// //// //// //// //// //// //// //// //// //// /// //// //// 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Agent each represent and warrant that they have the legal power, right and actual authority to bind Agent to the terms and conditions of this Agreement. Western Seniors Housing, Inc., a California Corporation *By: Anthony Sandoval, President City of Carlsbad , a chartered municipal corporation, Kathryn B. Dodson ;teve Sarkozy, City Manager ATTEST: J I Barbara Engleson, City Cle If required by City, proper notarial acknowledgment of execution by Ag must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-president **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Othenvise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: Celia Brewer, City Attorney /6y Jane Mobaldi, Assistant City Attorney CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE §1189 A notary public or other officer completing ttiis certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of me, Leanne Truofreh, Notary Public Here Insert Name and Title of the Officer before hate ^ personally appeared /f/rM^/iy Sar\JcU(Kl d/ld Kim Poll(JicJ\ ' Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person^ whose name@ ie/are subscribed to the within instrument and acknowledged to me that bWsbe/they executed the same in i*isA©i:/their authorized capacity(^ and that bytiis/her/their signature^) on the instrument the person^ or the entity upon behalf of whicTrflie person^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph immmmmm^ is true and correct. LEANNE TRUOFREH Commission # 2064657 Notary Public - Calitornia Orange County 1 u»ccm^inMtm»n.20)tt WITNESS my hand and official seal. Signature signature, of NotanJ Public Place Notary Seal Above OPTIONAL Though this section Is optional, completing this Information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document , ri < j. r Title or Type of Document: A^jmT- -fhcne^mTSlKL' Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1 -800-US NOTARY (1 -800-876-6827) Item #5907 CONSENT RESOLUTION OF THE BOARD OF DIRECTORS OF WESTERN SENIORS HOUSING, INC. Pursuant to ttie laws of the State of California, the undersigned, being the sole Director of WESTERN SENIORS HOUSING, INC., a California corporation ("Corporation"), does hereby consent to the following resolutions, as of January, 23, 2012. WHEREAS, the current officers of the Corporation are the following persons: Anthony O. Sandoval Anthony O. Sandoval Jason Luhan Kimberly Pollack Anthony O. Sandoval President/ Chief Executive Officer Chief Operating Officer Vice President Secretary Chief Financial Officer WHEREAS, the Director deems it in the best interest of the Corporation to add two more Vice President positions. IT IS THEREFORE RESOLVED, that the Director nominates and appoints Jennifer Jones and Kimberly Pollack to serve as Vice Presidents of the Corporation. FURTHER RESOLVED, as confinnation, the following persons shall serve as officers of the Corporation until their resignation, death, disability or removal from such office: Anthony O. Sandoval Anthony O. Sandoval Jason Luhan Jennifer Jones Kimberly Pollack Kimberly Pollack Anthony O. Sandoval President/ Chief Executive Officer Chief Operating Officer Vice President Vice President Vice President Secretary Chief Financial Officer SOLE DIRECTOR: VICKI R. CLARK 5837.IOOO\UCR- Doc 528596 new VP