RESOLUTION NO. 23-165
Resolution Of The City Council Of The City Of Emeryville Authorizing The City Manager To Enter Into A Professional Services Agreement With MNS Engineers, Inc. In An Amount Not To Exceed $1,050,000 For On Call Construction Management, Engineering Design, And City Engineer Support Services Until June 30, 2027, Extend The Contract To No Later Than December 18, 2028, And Increase The Contract Amount By No More Than An Additional $950,000 By Additional Contract Amendments For A Total Not To Exceed Amount Of $2,000,000 WHEREAS, the City is in need of Construction Management, Engineering Design, and City Engineer Support Services; and
WHEREAS, these Services are critical for the delivery of the 2023-28 Capital Improvement Program; and
WHEREAS, these Services are especially critical for the delivery of the Sustainable Streetscapes Project #SUT-01; and
WHEREAS, the Sustainable Streetscapes Project is a critical mechanism for implementation of the City’s Active Transportation Plan (ATP); and WHEREAS, the City finds that specialized knowledge, skills, and training are necessary to render the services necessary to do the work contemplated under this Agreement; and WHEREAS, on November 2, 2023, the City advertised an RFQ for Construction Management, Engineering Design, and City Engineer Support Services and MNS Engineers Inc. (Consultant) was selected as the most qualified firm to carry out the required work; and
WHEREAS, the City has determined that the Consultant is qualified by training and experience to render such services; and
WHEREAS, the Consultant desires to provide such services; and, WHEREAS, the public interest will be served by this Agreement; and WHEREAS, the proposed Professional Services Agreement with the Consultant is in an amount not to exceed $1,050,000 and the City Manager would be authorized to increase the contract amount by no more than an additional $950,000 for a total not to exceed amount of $2,000,000; and
WHEREAS, the contract term for the proposed Professional Services Agreement with the Consultant is until June 30, 2027 which the City Manager would be authorized to extend until December 18, 2028; and
DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C Resolution No. 23-165
MNS Engineers, Inc. Contract
City Council Meeting | December 19, 2023
WHEREAS, there is sufficient funding appropriated as part of the FY 2023-28 Capital Improvement Program to cover the cost of the Professional Services Agreement; now, therefore, be it
RESOLVED, that the City Council of the City of Emeryville authorizes the City Manager to enter into a Professional Services Agreement with MNS Engineers, Inc. in an amount not to exceed $1,050,000 for on call construction management, engineering design, and City Engineer support services until June 30, 2027, extend the contract to no later than December 18, 2028, and increase the contract amount by no more than an additional $950,000 by additional contract amendments for a total not to exceed amount of $2,000,000.
ADOPTED, by the City Council of the City of Emeryville at a regular meeting held Tuesday, December 19, 2023, by the following vote:
AYES: 5
Mayor Welch, Vice Mayor Mourra and Council Members Bauters, Kaur and Priforce
NOES: 0
ABSTAIN: 0
ABSENT: 0
MAYOR
ATTEST: APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C
C A L I F O R N I A
P R O F E S S I O N A L S E R V I C E S C O N T R A C T
F O R C I T Y U S E O N L Y
Contract No. CIP No.
Resolution No. Project No.
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THIS PROFESSIONAL SERVICES CONTRACT (“Contract”) is effective as of ____________________ (the “Effective Date”), by and between THE CITY OF EMERYVILLE, a municipal corporation, (“City”) and MNS ENGINEERS INC, (“Contractor”), individually referred to as a “Party” and collectively as the “Parties”.
W I T N E S S E T H T H A T
WHEREAS, the City desires to engage Contractor for On Call Construction Management, Engineering Design, and City Engineer Support Services ; and WHEREAS, the City finds that specialized knowledge, skills, and training are necessary to render the services necessary to do the work contemplated under this Contract; and WHEREAS, the City has determined that the Contractor is qualified by training and experience to render such services; and
WHEREAS, the Contractor desires to provide such services; and, WHEREAS, the public interest will be served by this Contract; and NOW, THEREFORE, the Parties hereto do mutually agree as follows:
1. SCOPE OF SERVICES AND TERMINATION DATE
1.1 Project Description
A complete project description is set forth in the Scope of Work, attached hereto as Exhibit A and incorporated herein by this reference.
1.2 Services
The services to be completed under this Contract (“Services”) are described in the Scope of Work set forth in Exhibit A. The Services shall be performed in accordance with terms, conditions, and specifications set forth herein. To the extent there is a conflict between the Scope of Work, and the terms, conditions, and specifications set forth herein, the terms, conditions, and specifications set forth herein shall govern.
1.3 Schedule and Completion Date
The Services to be provided by Contractor under this Contract shall commence on the Effective Date and terminate on JUNE 30, 2027. The Parties may, by mutual, written consent, extend the term of this Contract.
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2. WORK CHANGES
2.1 City Rights to Change
The City reserves the right to order changes in the Services to be performed under this Contract by altering, adding to or deducting from the Scope of Work. All such changes shall be incorporated in amendments executed by the Contractor and the City. Such amendments shall specify the changes ordered and any necessary adjustment of compensation and completion time.
2.2 Additional Work Changes
Any work added to the Scope of Work by an amendment shall be executed under all the applicable conditions of this Contract. No claim for additional compensation or extension of time shall be recognized unless contained in an amendment duly executed on behalf of the City and the Contractor.
2.3 City Manager Execution
The City Manager has authority to execute without further action of the Emeryville City Council, any number of amendments so long as their total effect does not materially alter the terms of this Contract or increase the total amount to be paid under this Contract, as set forth in Section 3.2 below.
3. COMPENSATION AND METHOD OF PAYMENT
3.1 Compensation for Services Performed
City agrees to pay the Contractor for the Services performed and costs incurred by Contractor upon certification by the City that the Services were actually performed and costs actually incurred in accordance with the Contract. Compensation for Services performed and reimbursement for costs incurred shall be paid to the Contractor upon receipt and approval by the City of invoices setting forth in detail the Services performed and costs incurred. The City shall pay the Contractor within forty-five (45) days after approval of the invoice by City staff.
3.2 Total Compensation Amount
The total amount paid under this Contract as compensation for Services performed and reimbursement for costs incurred shall not, in any case, exceed ONE MILLION, FIFTY THOUSAND DOLLARS AND NO CENTS ($1,050,000), except as outlined in Section
2.3 above. The compensation for Services performed shall be as set forth in Exhibit A.
Reimbursement for costs incurred shall be limited as follows. Long distance telephone and telecommunications, facsimile transmission, normal postage and express mail charges, photocopying and microcomputer time shall be at cost. Supplies and outside services, transportation, lodging, meals and authorized subcontracts shall be at cost plus no more than a 10% administrative burden. Automobile mileage shall be no more than the current deductible rate set by the Internal Revenue Service.
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4. COVENANTS OF CONTRACTOR
4.1 Assignment of Contract
The Contractor covenants and agrees not to assign or transfer any interest in, nor delegate any duties of this Contract, without the prior express written consent of the City. As to any approved subcontractors, the Contractor shall be solely responsible for reimbursing them and the City shall have no obligation to them.
4.2 Responsibility of Contractor and Indemnification of City To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless City and City’s members, officers, agents, employees and volunteers, from and against any and all claims, losses, liabilities of every kind, nature and description, damages, injury (including without limitation injury to or death of an employee of Contractor or subcontractors as well as any claim by any employee, agent, Contractor or independent contractor hired or employed by Contractor that such persons or individuals are entitled to any benefit otherwise provided to employees of the City, including coverage under the California Public Employee Retirement System), costs and expenses of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, reasonable attorneys’ fees, litigation expenses, and fees of expert contractors or expert witnesses incurred in connection therewith and the costs of investigation, arising out of, pertaining to, or relating to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Contractor, any subcontractor, anyone directly or indirectly employed by them or anyone that they control. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Contractor. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Contract.
If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
4.3 Independent Contractor
The Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the Services as an independent contractor and not as the agent or employee of the City. The Contractor agrees to be solely responsible for its own matters relating to the time and place the Services are performed; the instrumentalities, tools, supplies and/or materials necessary to complete the Services; hiring of contractors, agents or employees to complete the Services; and the payment of DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Professional Services Contract
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employees, including compliance with Social Security, withholding and all other regulations governing such matters. The Contractor agrees to be solely responsible for its own acts and those of its subordinates and employees during the term of this Contract.
4.4 Insurance
Contractor shall not commence Services under this Contract until it has provided evidence satisfactory to the City that it has secured all insurance required under Exhibit B, attached hereto and incorporated herein by this reference. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under Exhibit B. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Contract for cause.
4.5 Records, Reports and Audits
4.5.1 Records
A. Records shall be established and maintained by the Contractor in accordance with requirements prescribed by the City with respect to all matters covered by this Contract. Except as otherwise authorized, such records shall be maintained for a period of three years from the date that final payment is made under this Contract. Furthermore, records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later.
B. All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Contract shall be clearly identified and readily accessible.
4.5.2 Reports and Information
Upon request, the Contractor shall furnish to the City any and all statements, records, reports, data and information related to matters covered by this Contract in the form requested by the City.
4.5.3 Audits and Inspections
At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Contract. The Contractor will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Contract.
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4.6 Conflicts of Interest
The Contractor covenants and declares that, other than this Contract, it has no holdings or interests within the City of Emeryville, nor business holdings, contracts or agreements with any official, employee or other representative of the City. For the duration of this Contract, in the event the Contractor or its principals, agents or employees acquire such a holding, interest, contract, or agreement within the City of Emeryville or with any official, employee or representative of the City in the future, the Contractor will immediately notify the City of such holding, interest, contract, or agreement in writing.
4.7 Confidentiality
The Contractor agrees that such reports, information, opinions or conclusions shall not be made available to or discussed with any individual or organization, including the news media, without prior written approval of the City. The Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether deemed confidential or not.
4.8 Discrimination Prohibited
The Contractor covenants and agrees that in performing the Services required under this Contract, the Contractor shall not discriminate against any person on the basis of race, color, religion, sex, sexual orientation, gender identity, marital status, national origin or ancestry, age or disability, except as provided in section 12940 of the Government Code.
4.9 Licenses, Certifications and Permits
The Contractor covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Contractor by any and all national, state, regional, county, city or local boards, agencies, commissions, committees or other regulatory bodies in order to perform the Services contracted for under this Contract.
All work performed by Contractor under this Contract shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals.
4.10 Key Personnel
The Project Manager is necessary for the successful prosecution of the Services due to their unique expertise and depth and breadth of experience. There shall be no change in Contractor’s Project Manager or members of the project team without the City’s approval. Contractor recognizes that the composition of this team was instrumental in the City’s decision to award the work to Contractor and that compelling reasons for substituting these individuals must be demonstrated for the City’s consent to be granted. Any substitutes shall be persons of comparable or superior expertise and experience. Failure to comply with the provisions of this section shall constitute a material breach of Contractor’s obligations under this Contract and shall be grounds for termination.
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4.11 Authority to Contract
The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Contract, if applicable.
4.12 Ownership of Work
All reports, designs, drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the Services to be performed by the Contractor (“Materials”) shall be and are the property of the City and the City shall be entitled to full access and copies of all such Materials. Any such Materials remaining in the hands of the Contractor or subcontractor upon completion or termination of the work shall be delivered immediately to the City. The Contractor assumes all risk of loss, damage or destruction of or to such Materials. If any Materials are lost, damaged or destroyed before final delivery to the City, the Contractor shall replace them at its own expense. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Contractor agrees to execute any additional documents that may be necessary to evidence such assignment.
4.13 City Labor Requirements
4.13.1 Compliance
At the Effective Date, compliance with the City’s living wage ordinance is required / not required for this Contract. If this Contract provides for compensation to Contractor of $25,000 or more within a single fiscal year for providing Services to the City, then Contractor shall comply with the requirements of the City’s Living Wage Ordinance set forth in Chapter 31 of Title 5 of the Emeryville Municipal Code, unless (i) Contractor is a governmental entity, (ii) this Contract is subject to a higher prevailing wage rate as defined in the California Labor Code, or (iii) this Contract is subject to federal or state laws or regulations that would preclude the application of the City’s laws.
4.13.2 Applicability
Compliance with the Living Wage Ordinance, if applicable, shall be required during the term of the Contract for all employees of Contractor who perform at least twenty-five percent (25%) of the work arising from this Contract, unless said employees are otherwise exempt from the application of the Living Wage Ordinance pursuant to Section 5-31.08 of the Emeryville Municipal Code. Contractor shall promptly provide to the City documents and information verifying compliance with the requirements of the Living Wage Ordinance within ten (10) working days following a written request for such documentation and information from the City.
4.13.3 Non-Compliance
Failure to comply with the Living Wage Ordinance provides that a person claiming a violation thereof may bring an action against Contractor for back pay, reinstatement and DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Professional Services Contract
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compensatory damages, as well as a penalty up to three times the amount of damages for a willful violation, plus reasonable attorney’s fees and costs. In addition, the City may terminate the Contract and pursue any other remedies available to the City, including debarment, for violations of the Living Wage Ordinance.
4.13.4 Living Wage
Contractor shall notify each of its affected employees with regards to wages that are required to be paid pursuant to this Contract. “Living Wage” means no less than $18.00 PER HOUR (which is subject to increase annually on July 1st to reflect the twelve-month average increase to the Consumer Price Index for all urban consumers in the San Francisco-Oakland-San Jose Metropolitan Statistical Area for the preceding year from May to April, not to exceed three percent (3%) in any one year) including wages and health benefits. If employer contributions for health benefits are not paid on an hourly basis, the employer must demonstrate to the City the hourly value of such benefits in order to receive credit for such payments to covered employees.
4.13.5 Minimum Wage and Paid Sick Leave
In addition to the Living Wage Ordinance, the Contractor may be required to comply with the City’s Minimum Wage, Paid Sick Leave, and Other Employment Standards Ordinance, as set forth in Chapter 37 of Title 5 of the Emeryville Municipal Code, to the extent it is applicable.
4.14 California Labor Requirements
4.14.1 Prevailing Wage Requirements
Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
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4.14.2 Registration
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Contract and require the same of any subcontractors, as applicable.
Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
4.14.3 Labor Compliance Oversight
This Contract may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
4.14.4 Workers’ Compensation
Pursuant to the requirements of section 1860 of the California Labor Code, Contractor will be required to secure the payment of workers’ compensation to his employees in accordance with the provisions of section 3700 of the Labor Code. By signing this Contract, Contractor certifies the following:
“I am aware of the provisions of section 3700 of the California Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
4.14.5 Event of Default
Failure by Contractor to comply with any provision of this Section shall constitute a default of this Contract and shall be grounds for termination as provided in this Contract.
5. TERMINATION
A. The City shall have the right to terminate this Contract for any reason whatsoever by providing written notice thereof at least five (5) calendar days in advance of the termination date.
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Professional Services Contract
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B. All termination notice periods triggered pursuant to written notice shall begin to run from the date of the United States Postal Service postmark.
C. Upon termination, City shall provide for payment to the Contractor for Services rendered and expenses incurred prior to the termination date.
D. Upon receipt of a termination notice the Contractor shall: (1) promptly discontinue all Services affected, unless the notice directs otherwise; and (2) promptly deliver to the City all data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Contractor in performing this Contract, whether completed or in process, in the form specified by the City.
E. Notwithstanding anything to the contrary, this Contract is subject to immediate termination in the event the City Council does not appropriate sufficient funds for this Contract.
F. The rights and remedies of the City and the Contractor provided in this Section are in addition to any other rights and remedies provided under this Contract or at law or in equity.
6. NO PERSONAL LIABILITY
No member, official or employee of the City shall be personally liable to the Contractor or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Contractor or successor or on any obligation under the terms of this Contract.
7. ENTIRE AGREEMENT
This Contract constitutes the complete agreement between the Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement. No other agreement, statement or promise relating to the subject matter of this Contract not contained in this Contract shall be valid or binding. This Contract may be modified or amended only by a written document signed by representatives of both Parties with appropriate authorization.
8. SUCCESSORS AND ASSIGNS
Subject to the provisions of this Contract regarding assignment, this Contract shall be binding on the heirs, executors, administrators, successors and assigns of the respective Parties.
9. APPLICABLE LAW AND ATTORNEY’S FEES; VENUE
If any action at law or in equity is brought to enforce or interpret the provisions of this Contract, the rules, regulations, statutes and laws of the State of California will control.
The prevailing party shall be entitled to reasonable attorney's fees in addition to any DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Professional Services Contract
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other relief to which said party may be entitled. The exclusive venue for any legal action taken pursuant to this Contract shall be the State of California Superior Court for the County of Alameda or the United States District Court for the Northern District of California.
10. SEVERABILITY
The caption or headnote on articles or sections of this Contract are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof, or of this Contract nor in any way affect this Contract. Should any article(s) or section(s), or any part thereof, later be deemed unenforceable by a court of competent jurisdiction, the remainder of this Contract shall remain in full force and effect to the extent possible.
11. BUSINESS TAX CERTIFICATE
Prior to commencement of the Services to be provided hereunder, Contractor shall apply to the City of Emeryville Finance Department for a business tax certificate, pay the applicable business tax and maintain said business tax certificate during the term of this Contract, as provided in Article 1 of Chapter 1 of Title 3 of the Emeryville Municipal Code.
12. NOTICES
12.1 Communications Relating to Daily Activities
All communications relating to the day-to-day activities of the work and invoices shall be exchanged between Mohamed Alaoui for the City and Shawn Kowalewski for the Contractor:
CITY CONTRACTOR
Mohamed Alaoui
Phone No: 510-596-4341
E-Mail : [email protected]
Shawn Kowalewski
Phone No: (805)456-3540
E-Mail : [email protected]
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12.2 Official Notices
All other notices, writings or correspondence as required by this Contract shall be directed to the City and the Contractor, respectively, as follows:
CITY CONTRACTOR
Mohamed Alaoui, Director of Public
Works
1333 Park Avenue
Emeryville, California 94608
Phone No: 510 596-4341
E-Mail : [email protected]
with a copy to:
Mohamed Alaoui
1333 Park Avenue
Emeryville, California 94608
Phone No: 510 -596-4341
E-Mail : [email protected]
MNS Engineers Inc.
401 Grand Avenue, Suite 200
Oakland, CA 94610
Phone No: (805) 456-3540
E-Mail : [email protected]
13. COUNTERPARTS
This Contract may be signed in counterparts, each of which shall constitute an original. It is expressly agreed that each Party to this Contract shall be bound by its own telecopied, scanned, electronic or digital signature and shall accept the telecopied, scanned, electronic or digital signature of the other Party to this Contract.
14. NO THIRD-PARTY BENEFICIARIES
Except to the extent expressly provided for herein, there are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
15. NON-EXCLUSIVITY
City reserves right to employ other contractors in connection with the Services covered under this Contract.
16. ASSIGNMENT OR TRANSFER
Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Contract or any interest herein without the prior written consent of the City.
Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
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17. WAIVER
The City’s failure to enforce any provision of this Contract or the waiver in a particular instance shall not be construed as a general waiver of any future breach or default.
18. OTHER REQUIREMENTS
Compliance with terms and conditions set forth in Exhibit C is required / not required for this Contract. Contractor shall also fully and adequately comply with the provisions included in Exhibit C (“Other Requirements”) when attached hereto and incorporated herein by reference (“Other Requirements”). With respect to any conflict between such Other Requirements and the terms of this Contract and/or the provisions of state law, Exhibit C shall control.
SIGNATURES ON FOLLOWING PAGE
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19. SIGNATURE PAGE TO PROFESSIONAL SERVICES CONTRACT
IN WITNESS WHEREOF the City and the Contractor have executed this Contract, which shall become effective as of the date first written above.
Approved As To Form:
City Attorney
Dated: CITY OF EMERYVILLE
City Manager
Dated: MNS ENGINEERS, INC
(Signature)
Shawn Kowalewski, Vice President
Attach:
W-9 Form
Attach:
Business License Certificate
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 12/06/2023
DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C SECTION 5. BILLING RATES 1 of 3
5 Section 5. Billing Rates
20 2 4 STANDARD SCHEDULE OF FEES
PROJECT/PROGRAM MANAGEMENT
Principal-In-Charge.............................. $341
Senior Project/Program Manager ..... 326
Project/Program Manager ................... 273
Assistant Project/Program Manager 257
Senior Project Coordinator.................. 194
Project Coordinator................................ 163
ENGINEERING
Principal Engineer................................. $305 Lead Engineer........................................... 268 Supervising Engineer............................. 257
Senior Project Engineer ........................ 236
Project Engineer ...................................... 210 Associate Engineer ................................. 189 Assistant Engineer .................................. 173
SURVEYING
Principal Surveyor................................. $278 Lead Surveyor........................................... 268 Supervising Surveyor............................. 231
Senior Project Surveyor ........................ 210
Project Surveyor ...................................... 184 Associate Project Surveyor.................. 173
Assistant Project Surveyor................... 158
Party Chief (PW)....................................... 189 Chainperson (PW)................................... 158 One-Person Survey Crew (PW)........... 226
TECHNICAL SUPPORT
CADD Manager...................................... $210 Supervising Technician ......................... 179
Senior Technician.................................... 168 Engineering Technician......................... 131
CONSTRUCTION MANAGEMENT
Principal Construction Manager...... $336
Senior Construction Manager............ 289
Senior Resident Engineer..................... 278
Resident Engineer................................... 268 Structure Representative...................... 257
Construction Manager.......................... 231
Assistant Resident Engineer................ 215
Sr. Construction Inspector (PW) ....... 200
Construction Inspector (PW) ............. 189
Office Administrator .............................. 137
PLANNING
Planning Director..................................$236 City Planner/Planning Manager......... 221
Principal Planner...................................... 205 Senior Planner.......................................... 189 Associate Planner.................................... 158 Assistant Planner..................................... 137 Planning Technician............................... 116
ADMINISTRATIVE SUPPORT
Senior Management Analyst ............$194
Management Analyst ............................ 163
IT Technician............................................. 147 Graphics/Visualization Specialist....... 158
Administrative Assistant....................... 105
GOVERNMENT SERVICES
City Engineer ..........................................$263 Deputy City Engineer............................. 236
Assistant City Engineer ......................... 226
Plan Check Engineer.............................. 200
Permit Engineer....................................... 194 City Inspector ........................................... 194 Senior City Inspector (PW) ................. 205
City Inspector (PW)................................. 194 Principal Stormwater Specialist ......... 189
Senior Stormwater Specialist.............. 179
Stormwater Specialist............................ 168
Stormwater Technician ......................... 147
Building Official ....................................... 231 Senior Building Inspector..................... 247
Building Inspector................................... 173 Senior Grant Writer................................ 189 Grant Writer.............................................. 179 Associate Grant Writer.......................... 158
Assistant Grant Writer........................... 137
DIRECT EXPENSES
Use of outside consultants as well as copies, blueprints, survey stakes, monuments, computer plots, telephone, travel (out of area) and all similar charges directly connected with the work will be charged at cost plus fifteen percent (15%). Mileage will be charged at the current federal mileage reimbursement rate.
PREVAILING WAGE RATES
Rates shown with Prevailing Wage “(PW)” annotation are used for field work on projects subject to federal or state prevailing wage law and are subject to increases per DIR.
ANNUAL ESCALATION
Standard fee rates provided for each classification are subject to 4% annual escalation or the most recent US Bureau of Labor Statistics Consumer Price Index, whichever is higher.
OVERTIME
Overtime for non-exempt employees will be charged at 1.5 x hourly rate; overtime for exempt employees and other classification will be charged at 1 x hourly rate.
Exhibit A
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C Exhibit A
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The Contractor shall provide the following services and support to the saƟsfacƟon of the City:
1. ConstrucƟon Management
a. Caltrans ConstrucƟon Management Procedures and DocumentaƟon: Perform contrucƟon management in accordance with Caltrans procedures. b. Contract Management: Review and manage construcƟon contracts to ensure compliance with terms, condiƟons, and obligaƟons, and facilitate effecƟve communicaƟon between involved parƟes.
c. Environmental Safety: Monitor environmental safety for compliance with state and local regulaƟon including dust monitoring ans stormwater polluƟon protecƟon. d. Safey Oversight: Monitor project worker and public site safety, conducƟng safety audits and taking correcƟve acƟons as required.
e. Cost Control: Monitor project expenditures, manage budgets, and process change orders to ensure that construcƟon costs remain within approved limits. f. Document Management: Maintain accurate and up‐to‐date project documentaƟon, including daily reports, drawings, contracts, change orders, Weekly Statements of Working Days, and progress reports.
g. CoordinaƟon and CommunicaƟon: Facilitate effecƟve communicaƟon among project stakeholders, including contractors, subcontractors, architects, members of the public, and regulatory authoriƟes.
h. Problem Solving: IdenƟfy and address construcƟon‐related challenges and issues, developing and implemenƟng soluƟons to miƟgate potenƟal risks and delays. i. Progress ReporƟng: Provide regular progress reports to City project manager, detailing project financial status, schedule, accomplishments, and potenƟal concerns. j. Project Closeout: Oversee project compleƟon and payment, conduct final inspecƟons, address outstanding items, ensure format and accuracy of as builts, and facilitate a seamless project handover.
k. InspecƟons: In accordance with Caltrans and accepted industry standards; conduct thorough on‐site inspecƟons and audits at various project stages to verify compliance with approved plans, codes, regulaƟons, and industry standards. IdenƟfy, document and iniƟate correcƟon of any non‐conformiƟes, deficiencies, or deviaƟons from established quality criteria. Conduct thorough on‐site inspecƟons and audits at various project stages to verify compliance with approved plans, codes, regulaƟons, and industry standards. IdenƟfy, document and iniƟate correcƟon of any non‐conformiƟes, deficiencies, or deviaƟons from established quality criteria.
2. Regulatory Compliance and Risk MiƟgaƟon: Provide guidance on regulatory requirements and permiƫng processes, ensuring that all construcƟon acƟviƟes adhere to local, state, and federal regulaƟons. IdenƟfy potenƟal risks to project quality, safety, and compliance, and collaborate with project teams to develop effecƟve miƟgaƟon strategies. Provide Ɵmely soluƟons and recommendaƟons to address quality‐related issues that may arise during construcƟon. a. Training and Support: In order to develop knowledge base keep current industry change, provide oversight support and training to staff assigned to City projects.
3. City Engineer Support
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C Exhibit A
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a. Plan Development and Review: Review capital improvement and private development plans for conformance with state and local requirements and standards. Review and assess project plans, specificaƟons, and designs to idenƟfy potenƟal constucƟbility and quality‐related challenges and recommend improvements.
b. City RepresentaƟon: AƩending City Council, Planning Commission, and other commiƩee meeƟngs when directed.
c. MeeƟng ParƟcipaƟon: AƩending staff level meeƟngs with City staff, public officials, community leaders, developers, contractors, and the general public. d. Accessibility: Support ADA Coordinator by providing technical analysis as necessary. e. Support: Provide technical advice to City personnel assigned to public works acƟviƟes.
Provide, on an as‐needed basis, review and issue public works permits and other engineering‐related maƩers uƟlizing City soŌware or at the service counter. f. QA/QC: Review project documents (before, during, and aŌer construcƟon) and provide recommendaƟons for quality improvements. Promote collaboraƟon through clear communicaƟon and training on QA/QC principles for project parƟcipants.
4. Engineering Design for Civil Engineering projects, including but not limited to: paving projects, pedestrian, and bike facility design. Tasks to include:
a. Design: Prepare plans and specificaƟons for City projects using City and Caltrans Standard Plans and SpecificaƟons (typical).
b. Support: Provide DSDC (design support during construcƟon) and observaƟon in field for City projects.
c. Specialty: Provide special engineering reports regarding such maƩers as right‐of‐way issues, annexaƟons, developer impact fees, studies, master plans, etc. d. UƟliƟes: CoordinaƟon with uƟlity companies in the relocaƟon of affected uƟliƟes. e. Outside Agencies: Coordinate outside agency processing and review of plans and specificaƟons. Obtain outside agency approval in connecƟon with special funding programs and permits when required.
f. RFP/RFQ Assistance: For projects that the City wishes to have designed by outside consultants, as directed, assisƟng the City in preparing requests for proposals to retain consultants to provide design services and shall oversee said design on behalf of the City.
g. AcƟve TransportaƟon: InnovaƟve Designs as part of acƟve transportaƟon projects.
5. An understanding of Federal/State/Local funding including but not limited to: Local Assistance Program Guidelines (LAPG) and policies, Alameda County TransportaƟon Commission (ACTC), and Metropolitan TransportaƟon Commission (MTC) TransportaƟon Improvement Program requirements.
a. Required Forms: AssisƟng City staff in filling out required forms for compliance with various local regional, state, and federal grant programs. b. Grants: AssisƟng City staff with graphics, maps, and other required items for local regional, state, and federal grant applicaƟons
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C
C A L I F O R N I A
REV 08/2020 Page 1 of 5
E X H I B I T B
Contract Insurance Requirements
As used in this Exhibit B, Contractor refers to MNS ENGINEERS, INC.
1. MINIMUM REQUIREMENTS
Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work or Services required by the Contract hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage, as checked below:
1.1 Minimum Scope of Insurance
Coverage shall be at least as broad as the latest version of the following:
General Liability
Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01).
Automobile Liability
Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto) or if Contractor owns no vehicles, this requirement may be met through a non-owned auto endorsement to the General Liability Policy. Professional Liability / Errors and Omissions
Written on a policy form specifically designed to protect against acts, errors or omissions of the Contractor wherein “Covered Professional Services” as designated in the policy must specifically include Services performed under this Contract.
Workers’ Compensation and Employer’s Liability
Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. Policies shall not contain exclusions contrary to this Contract.
Pollution Liability Insurance
Pollution Liability insurance for claims arising from the discharge, dispersal release or escape or any irritant or contaminant into or upon land, any structure, the atmosphere, watercourse or body of water, including groundwater. This shall DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020
include on and off-site clean up and emergency response costs and claims arising from above ground and below ground storage tanks.
1.2 Minimum Limits of Insurance
Contractor shall maintain limits no less than:
General Liability
$1,000,000.00 per occurrence and $2,000,000.00 aggregate for bodily injury, personal injury and property damage, including without limitation, blanket contractual liability.
OR
$2,000,000.00 per occurrence and $4,000,000.00 aggregate for bodily injury, personal injury and property damage, including without limitation, blanket contractual liability, and coverage for explosion, collapse and underground property damage hazards.
Automobile Liability
$2,000,000.00 per accident for bodily injury and property damage. Professional Liability / Errors and Omissions
$2,000,000.00 per claim and aggregate.
Workers’ Compensation and Employer’s Liability
Workers’ compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000.00 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease. Pollution Liability Insurance
$2,000,000.00 per occurrence and $2,000,000.00 aggregate.
Except for the professional liability / errors and omissions policy, defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the Parties required to be named as additional insureds pursuant to this Contract.
2. INSURANCE ENDORSEMENTS
The insurance policies shall contain the following provisions, if checked, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the City to add the following provisions, if checked, to the insurance policies:
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020
General Liability
(1) Such policy shall provide the City, its officials, employees, agents and authorized volunteers additional insured status using ISO endorsements CG20 10 or CG20 37, or endorsements providing the exact same coverage, with respect to the work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it; and (4) the insurance coverage shall contain standard separation of insureds provisions.
Automobile Liability
(1) Such policy shall provide the City, its officials, employees, agents and authorized volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.
Professional Liability Coverage
Any policy inception date, continuity date, or retroactive date must be before the effective date of this Contract and Contractor agrees to maintain continuous coverage through a period no less than three years after termination of the Contract.
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020
Workers’ Compensation and Employer’s Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officials, employees, agents and authorized volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor. Pollution Liability Coverage
(1) Such policy shall give the City, its officials, employees, agents and authorized volunteers additional insured status with respect to claims arising from the discharge, dispersal release or escape or any irritant or contaminant into or upon land, any structure, the atmosphere, watercourse or body of water, including groundwater; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the City, its officials, employees, agents and authorized volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its officials, employees, agents and authorized volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.
ALL COVERAGES
Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its officials, employees, agents and authorized volunteers.
3. NO SPECIAL LIMITATIONS
The required insurance shall not contain any special limitations on the scope of protection afforded to the City, its officials, employees, agents and authorized volunteers.
4. DEDUCTIBLES AND SELF-INSURANCE RETENTIONS
Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to the City guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C City of Emeryville | Contract Insurance Requirements (Exhibit B) REV 08/2020
5. ACCEPTABILITY OF INSURERS
Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A-:VII, licensed to do business in California, and satisfactory to the City. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
6. VERIFICATION OF COVERAGE
Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the City. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
7. SUBCONTRACTORS
All subcontractors shall meet the requirements of this Section before commencing any work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the City, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the City in writing.
8. REPORTING OF CLAIMS
Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the work performed under this Contract.
Attach:
Insurance Certificate and Endorsements
DocuSign Envelope ID: 94605F29-C3F2-4731-A90D-BEC2EFCA8828 DocuSign Envelope ID: 2CFFFBD9-1D1F-45CA-9754-7419762F4E2C