Agenda Item A.10
CPMS CONSENT CALENDAR
Meeting Date: January 16, 2024
____________________________________________________________ TO: Mayor and Councilmembers
FROM: Charles W. Ebeling, Public Works Director
PREPARED BY: Autumn Glaeser, Capital Improvement Program Manager SUBJECT: Amendment 4 to Professional Services Agreement 2021 -092 with MNS Engineers, Inc.
RECOMMENDATION:
Authorize the City Manager to execute Amendment No. 4 to Professional Services Agreement No. 2021 -092 with MNS Engineers, Inc. for Project Management Support Services, increasing the contract authority by $ 244,000, for a new total not-to-exceed amount of $488,000.
BACKGROUND:
Public Works Department staff has engaged qualified private consultants to perform a variety of professional services for the City since it was incorporated in 2002. Before initiating an agreement for professional services, the City’s purchasing regulations in the municipal code require an open solicitation for necessary services. The City follows California Government Code, Title 1, Chapter 10, Sections 4525 -4529 for the qualifications-based selection of Engineers, Land Surveying, and Construc tion Management firms. Before initiating a contract, the purchasing regulations in the Goleta Municipal Code require open solicitation for the necessary services. This is done through the Request for Proposals/Request for Qualifications (RFP/RFQ) process.
Through the RFP/RFQ process, Public Works selected MNS Engineers, Inc. (MNS) to provide various project management support services for various Capital Improvement Program (CIP) and capital maintenance projects.
DISCUSSION:
The Public Works Department has a significant amount of capital maintenance projects and high-priority, grant-funded CIP projects with upcoming deadlines that must be met, or funding may be jeopardized. In addition, most of these projects are moving into the final design and construction phases, the most labor-intensive and time-sensitive phases 1 Meeting Date: 1/16/2024
of a project. The workload associated with these projects is more than Public Works’ current staff can manage, therefore additional project management support services are needed.
The City has an existing agreement with MNS to provide professional project management support services to assist the Public Works Department in delivering needed tasks. Th is agreement will expire on December 31, 202 4. Public Works staff is recommending Amendment No. 4 so MNS can continue to provide support services.
Kent Yankee, P.E., has been providing these services on behalf of MNS. Mr. Yankee has over 20 years of civil engineering experience and has worked on several CIP and capital maintenance projects. Mr. Yankee is currently the Contract City Project Manager for CIP 9062 Storke/Hollister Transit, Bike/Ped, and Median Improvement, Annual Concrete Program, and emergency storm repair projects.
Public Works staff have reviewed and agree with the proposed scope of work and project manager; therefore, staff recommends an amendment to professional services agreement No. 2021-092 increasing the contract authority by $ 244,000, increasing the total compensation amount for a new total not-to-exceed amount of $ 488,000 (Attachment 1). The original Professional Services Agreement No. 2021 -092 and Amendments No 1, 2, are provided in Attachment 2.
FISCAL IMPACTS:
There are sufficient funds in the FY 2023-24 and FY 2024 -25 budgets for the subject contracts, so no new add itional appropriations are necessary for the proposed amendment. The following table outlines the additional contract increases and associated project and program accounts:
ALTERNATIVES:
The City Council may elect not to authorize this amendment and direct the Public Works Department to seek statements of qualifications and proposals from additional qualified firms. Doing so could cause delays in the management and delivery of Public Works services and could impact the schedule and/or grant funding for capital maintenance and CIP projects.
Vendor Amendment
Amount Account Fund Type
FY2023-24
Budget
FY2024-25
Budget
MNS $244,000
Professional
Services, Contract
Services,
Development
Review, and
Various CIP
Accounts
General Fund,
DIF, and
Measure A
Various PW
Accounts and
CIP Accounts
Various PW
Accounts and
CIP Accounts
2 Meeting Date: 1/16/2024
Legal Review By: Megan Garibaldi, City Attorney
Approved By: Robert Nisbet, City Manager
ATTACHMENTS:
1. Amendment No. 4 to Agreement No. 2021-092 with MNS Engineers, Inc.
2. Amendment No. 3, Amendment No. 2, Amendment No. 1 and Professional Services Agreement No. 2021-092 with MNS Engineers, Inc. 3 ATTACHMENT 1
Amendment 4 to Agreement No. 2021-092 with MNS Engineers, Inc. 4 City of Goleta
Amendment No. 4 to Agreement No. 2021-092
AMENDMENT NO. 4
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
MNS ENGINEERS, INC.
This Amendment No. 4 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation (“City”) and MNS Engineers, Inc. (“Consultant”) dated October 25, 2021 (“Agreement,” Agreement No. 2021-092) is made on this _____ day of _________, 2024.
SECTION A. RECITALS
1. This Agreement is for the project management support services for various Capital Improvement Program and Capital Maintenance projects; and
2. This Agreement has been amended to provide additional compensation, increasing the not-to-exceed of one hundred and twenty thousand dollars ($120,000) to a total not-to-exceed of one hundred sixty-four thousand dollars ($164,000) and to extend the termination date to December 31, 2023 (Amendment No. 1); and
3. This Agreement has been amended to provide additional compensation, increasing the not-to-exceed of eighty thousand dollars ($80,000) to a total not-to-exceed of two hundred and forty-four thousand dollars ($244,000) and to extend the termination date to December 31, 2024 (Amendment No. 2); and
4. This Agreement has been amended to identify the new hourly rates (Amendment No. 3); and
5. The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not -to-exceed two hundred and forty -four thousand dollars ($244,000); and
6. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of two hundred and forty -four thousand dollars ($244,000) for continued tasks; and
7. The City Council approved this Amendment No. 4, on this _____ day of ____, 2024.
DocuSign Envelope ID: AFC94A65-F628-4038-9AF6-5B106A7B2058 5 City of Goleta
Amendment No. 4 to Agreement No. 2021-092
SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
1. Subsection (a) of Section 3. COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of two hundred and forty-four thousand dollars ($244,000) and to read in its entirety:
(a) Maximum and Rate . The total compensation payable to CONSULTANT for the services under this AGREEMENT SHALL
NOT EXCEED the sum of Insert amount ($488,000) (herein "not-to- exceed amount") and shall be earned as the work progresses.
Hourly at the hourly rates and with reimbursement to
CONSULTANT for those expenses set forth in
CONSULTANT's Schedule of Fees marked Exhibit "B,"
attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONS ULTANT until December 31, 2024, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT
for all work described under this AGREEMENT.
2. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect.
In concurrence and witness whereof, this Amendment No. 4 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Robert Nisbet, City Manager Greg Chelini, President
ATTEST:
_____________________________ ______________________________ Deborah Lopez, City Clerk Jeff Edwards, Vice President
DocuSign Envelope ID: AFC94A65-F628-4038-9AF6-5B106A7B2058 6 City of Goleta
Amendment No. 4 to Agreement No. 2021-092
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
DocuSign Envelope ID: AFC94A65-F628-4038-9AF6-5B106A7B2058 7 ATTACHMENT 2
Amendment No. 3, Amendment No. 2, Amendment No. 1, and Professional Services Agreement No. 2021-092 with MNS Engineers, Inc.
8 City of Goleta
Amendment No. 3 to Agreement No. 2021-092
AMENDMENT NO. 3
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
MNS ENGINEERS, INC.
This Amendment No. 3 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation (“City”) and MNS Engineers, Inc. (“Consultant”) dated October 25, 2021 (“Agreement,” Agreement No. 2021-092) is made on this _____ day of ___, 2023.
SECTION A. RECITALS
1. This Agreement is for the project management support services for various Capital Improvement Program and Capital Maintenance projects; and
2. This Agreement has been amended to provide additional compensation, increasing the not-to-exceed of one hundred and twenty thousand dollars ($120,000) to a total not-to-exceed of one hundred sixty-four thousand dollars ($164,000) and to extend the termination date to December 31, 2023 (Amendment No. 1); and
3. This Agreement has been amended to provide additional compensation, increasing the not-to-exceed of eighty thousand dollars ($80,000) to a total not-to-exceed of two hundred and forty-four thousand dollars ($244,000) and to extend the termination date to December 31, 2024 (Amendment No. 2); and
4. The Agreement currently provides in Exhibit B entitled “Compensation” the hourly rates; and
5. The parties desire to amend Exhibit B of the Agreement to identify the new hourly rates, attached as “Exhibit B-1”; and
6. The City Manager approved this Amendment No. 3, on this _____ day of ____, 2023.
SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
9 City of Goleta
Amendment No. 3 to Agreement No. 2021-092
1. This Agreement is amended to delete and replace in its entirety:
Exhibit B “Compensation” with Exhibit B-1 “Compensation” attached hereto and incorporated herein.
2. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect
In concurrence and witness whereof, this Amendment No. 3 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA
____________________________
Robert Nisbet, City Manager
ATTEST:
_____________________________
Deborah Lopez, City Clerk
CONSULTANT
______________________________
*UHJ&KHOLQL, 3UHVLGHQW
______________________________
-HII(GZDUGV,9LFH3UHVLGHQW
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
10 City of Goleta
Amendment No. 3 to Agreement No. 2021-092
Exhibit B-1 “Compensation
11 City of Goleta
Amendment No. 2 to Agreement No. 2021-092
AMENDMENT NO. 2
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
MNS ENGINEERS, INC.
This Amendment No. 2 to the Professional Services Agreement by and between the City of Goleta , a municipal corporation ( “City”) and MNS Engineers, Inc. (“Consultant”) dated October 25, 2021 (“Agreement,”Agreement No. 2021-092) is made on this _____ day of ___, 2023.
SECTION A. RECITALS
1. This Agreement is for project management support services for various Capital Improvement Program and Capital Maintenance projects; and
2. This Agreement has been amended to provide for additional compensation, increasing the not-to-exceed amount by one hundred and twenty thousand dollars ($120,000) to a total not-to-exceed of one hundred sixty-four thousand dollars ($164,000) and to extend the termination date to December 31, 2023 (Amendment 1); and
3. The Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed one hundred sixty-four thousand dollars ($164,000); and
4. The parties desire to amend the Agreement so as to provide for additional compensation in the amount of $80,000 for continued tasks; and
5. The Agreement currently provides in Section 6 for the termination of the Agreement on December 31, 2023; and
6. The parties desire to amend the Agreement so as to extend the termination of the Agreement to December 31, 2024; and
7. The City Council approved this Amendment No. 2, on this _____ day of ____, 2023.
SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
12 City of Goleta
Amendment No. 2 to Agreement No. 2021-092
1. Subsection (a) of Section 3. COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $80,000 and to read in its entirety:
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of two hundred and forty-four
thousand dollars ($244,000) (herein "not-to-exceed amount") and shall be earned as the work progresses.
Hourly at the hourly rates and with reimbursement to
CONSULTANT for those expenses set forth in
CONSULTANT's Schedule of Fees marked Exhibit "B,"
attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until December 31, 2024, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT
for all work described under this AGREEMENT.
2. Section 6. TERM, PROGRESS AND COMPLETION of the Agreement is amended to extend the term for an additional year to read in its entirety.
The term of this Agreement is from the date first written above to December 31, 2024, unless the term of this Agreem ent is extended or the Agreement is terminated as provided for herein.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY’s Project Manager. All services shall be completed within the term of this Agreement following the notice to proceed.
3. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect.
13 City of Goleta
Amendment No. 2 to Agreement No. 2021-092
In concurrence and witness whereof, this Amendment No. 2 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
____________________________
Robert Nisbet, City Manager
______________________________
*UHJ&KHOLQL,President
ATTEST:
_____________________________ ______________________________ Deborah Lopez, City Clerk Jeff Edwards, Vice President
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Scott Shapses, Deputy City Attorney
14 City of Goleta
Amendment No. 1 to Agreement No. 2021-092
AMENDMENT NO. 1
TO A PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF GOLETA
AND
MNS ENGINEERS, INC.
This Amendment No. 1 to the Professional Services Agreement by and between the City of Goleta, a municipal corporation (“City”) and MNS Engineers, Inc., a California Corporation (“Consultant”) dated October 25, 2021 (“Agreement,” Agreement No. 2021- 092) is made on this 5th day of April 2022.
SECTION A. RECITALS
1. T his Agreement is for professional services for project management support services for various Capital Improvement Program and Capital Maintenance projects; and
2. This Agreement has been amended to Agreement for Professional Services between the City of Goleta and MNS Engineers, Inc; and
3. T he Agreement currently provides in Section 3 Subsection (a) for the total compensation amount not to exceed $44,000 (forty-four thousand dollars); and
4. T he parties desire to amend the Agreement so as to provide for additional compensation in the amount of $120,000 for continued tasks; and
5. T he Agreement currently provides in Section 6 for the termination of the Agreement on June 30, 2022; and
6. T he parties desire to amend the Agreement so as to extend the termination of the Agreement to December 31, 2023; and
7. The City Council approved this Amendment No. 1, on this 5 th d ay of April
2022.
SECTION B. AMENDED TERMS
Now therefore City and Consultant agree as follows that the Agreement be, and hereby is, amended as follows:
DocuSign Envelope ID: 5909C70C-EBD0-4C3E-A4E1-5958915716A3 DocuSign Envelope ID: 8E52CDD0-1A40-4B00-9754-58C3B0113E13 Approved 2021-092.1
15 City of Goleta
Amendment No. 1 to Agreement No. 2021-092
1. S ubsection (a) of Section 3 . COMPENSATION AND PAYMENT of the Agreement is amended to add an additional authorized amount of $120,000 and to read in its entirety:
(a) Maximum and Rate. The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $164,000 (One hundred sixty-four thousand) (herein "not-to-exceed amount") and shall be earned as the work progresses.
2. Section 6. TERM, PROGRESS AND COMPLETION of the Agreement is amended to extend the term for an additional six months to read in its entirety.
The term of this Agreement is from the date first written above to D ecember 31, 2023, unless the term of this Agreement is extended, or the Agreement is terminated as provided for herein.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY’s Project Manager. All services shall be completed within the term of this Agreement following the notice to proceed.
3. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect
DocuSign Envelope ID: 5909C70C-EBD0-4C3E-A4E1-5958915716A3 DocuSign Envelope ID: 8E52CDD0-1A40-4B00-9754-58C3B0113E13 16 City of Goleta
Amendment No. 1 to Agreement No. 2021-092
In concurrence and witness whereof, this Amendment No. 1 has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
____________________________ ______________________________ Michelle Greene, City Manager James Salvito, President
ATTEST:
_____________________________ ______________________________ Deborah Lopez, City Clerk Jeff Edwards, Vice President
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
DocuSign Envelope ID: 5909C70C-EBD0-4C3E-A4E1-5958915716A3 DocuSign Envelope ID: 8E52CDD0-1A40-4B00-9754-58C3B0113E13 17 City of Goleta
PW and MNS Engineers, Inc.
Project Name: Project Management Support Services
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF GOLETA
AND
MNS ENGINEERS, INC
This AGREEMENT FOR PROFESSIONAL SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ________ day of ______, 20____, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), and MNS ENGINEERS, INC., a California Corporation, (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional services for project management support services for various Capital Improvement Program projects; and
2. The CITY does not have the personnel able and/or available to perform the services required under this AGREEMENT, and therefore, the CITY desires to contract for professional services to accomplish this work; and
3. The CITY procured these services in compliance with Goleta Municipal Code Section 3.05.260 by an evaluation process of proposals received from the pre-authorized qualified consultant list approved by Council on December 3, 2019; and
4. The City Manager approved this AGREEMENT pursuant to Goleta Municipal Code section 3.05.070.
SECTION B. TERMS
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts such engagement, to perform the services described in Section 2. CONSULTANT warrants it has the qualifications, experience, and facilities to properly and timely perform said services.
2. DESCRIPTION OF SERVICES
The services to be performed by CONSULTANT are as follows:
Project management assistance for various Capital Improvement Program Projects. Services shall generally include project
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21 2021-092
25th
18 City of Goleta
PW and MNS Engineers, Inc.
management as more particularly set forth in the Scope of Work, attached as Exhibit “A,” and incorporated herein.
CONSULTANT shall deliver to CITY the deliverables defined in Exhibit “A.”
3. COMPENSATION AND PAYMENT
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the services under this AGREEMENT SHALL NOT EXCEED the sum of $44,000 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimbursement to CONSULTANT for those expenses set forth in CONSULTANT's Schedule of Fees marked Exhibit "B," attached and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon CONSULTANT until June 30, 2022, after which any change in said rates and expenses must be approved in writing by CITY's Project Manager as described in Section 5 (CITY is to be given 60 days notice of any rate increase request), provided the not to exceed amount is the total compensation due CONSULTANT for all work described under this AGREEMENT.
(b) Payment . CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification shall be in a form satisfactory to CITY's Project Manager, as described in Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of hours worked by personnel classification).
All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of the incurrence of extra services by CONSULTANT.
Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liability and no ri ght to claim compensation for such extra services or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B, if one is included as part of this agreement. Any compensation for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section
3.
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PW and MNS Engineers, Inc.
5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is James Campero, Deputy Public Works Director shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorized to extend the term of the AGREEMENT or increase the not to exceed amount.
6. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT is from the date first written above to June 30, 2022, unless term of this AGREEMENT is extended, or the AGREEMENT is terminated as provided for herein.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTANT's drafts, notes and internal memorandum), including duplication of same prepared by CONSULTANT in the performance of these services, are the property of CITY. CITY shall be entitled to immediate possession of the same upon completion of the work under this AGREEMENT, or at any earlier or later time when requested by CITY. CITY agrees to hold CONSULTANT harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than those described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.
8. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for professional services which are personal to CITY.
Kent Yankee, is deemed to be specially experienced and is a key member of CONSULTANT's firm, and shall be directly involved in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the progress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this AGREEMENT.
This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
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PW and MNS Engineers, Inc.
9. HOLD HARMLESS AND INDEMNITY
(a) Indemnification and Defense for Professional Service. To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless the CITY and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT. CONSULTANT’s duty to defend shall consist of reimbursement of defense costs incurred by CITY in direct proportion to the CONSULTANT’s proportionate percentage of fault. CONSULTANT’s percentage of fault shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the CONSULTANT’s percentage of fault, the parties agree to mediation with a third party neutral to determine the CONSULTANT’s proportionate percentage of fault for purposes of determining the amount of indemnity and defense cost reimbursement owed to the CITY. (b) For All Other Liabilities. Notwithstanding the foregoing and without diminishing any rights of CITY, for an y liability, claim, demand, allegation against CITY arising out of, related to, or pertaining to any act or omission of CONSULTANT, but which is not a design professional service, CONSULTANT shall defend, indemnify, and hold harmless CITY, its officials, employees, and agents (“Indemnified Parties”) from and against any and all damages, costs, expenses (including reasonable attor ney fees and expert witness fees), judgments, settlements, and/or arbitration awards, whether for personal or bodily injury, property damage, or economic injury, and arising out of, related to, any concurrent or contributory negligence on the part of the CITY, except for the sole or active negligence of, or willful misconduct of the CITY. (c) No Waiver. ClTY does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in Section 10.
10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense, provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A- or better, Class VII or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
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PW and MNS Engineers, Inc.
a) Insurance Services Office Commercial Liability coverage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
b) Insurance Services Office form number CA 00 01 or equivalent covering Automobile Liability, including hired and non-owned automobile liability with a minimum limit of $1,000,000 per accident. If the Service Provider owns no vehicles, this requirement may be satisfied by a non-owned and hired auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with California worker’s compensation laws, including statutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the minimum amount of $1,000,000 per claim.
Liability insurance policies required to be provided by CONSULTANT hereunder shall contain or be endorsed to contain the following provisions:
a) CITY, its employees, officials, agents and member agencies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the work performed or related to the contract.
Additional insured status under th e general liability requirement shall be provided on Insurance Services Office Form CG 20 10, with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37, or its equivalent.
b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insu rer’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance po licies inception date, continuity date, or retroactive date must be before the effective date of this agreement.
CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
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PW and MNS Engineers, Inc.
d) Liability coverage shall be primary and non-contributing with any insurance maintained by CITY.
e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY. Such provision shall not include any limitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT’s
employees, or agents, from waiving the right of recovery prior to a loss.
CONSULTANT waives its right of recovery against CITY.
g) CONSULTANT agrees to deposit with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONSULTANT or CITY will withhold amounts sufficient to pay premium from CONSULTANT payments.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
11. RELATIONSHIP OF CONSULTANT TO CITY
The relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensation insurance, withholding taxes,
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unemployment insurance, and any other employer obligations associated with the described work.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plans. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT in writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If termination is for cause, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following submission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTANT for anything done, furnished, or relating to CONSULTANT'S work or services. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check. However, approval or payment by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with respect to all matters covered by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such
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records. CONSULTA NT will retain such financial records, time sheets, work progress reports, invoices, bills and project records for at least two years after termination or final payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this AGREEMENT, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial interest in CONSULTANT'S business. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT, CONSULTANT shall not offer, encourage or accept any financial interest in CONSULTANT'S business by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
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20. GOVERNING LAW
This AGREEMENT, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminate on the basis of race, color, gender, gender identity/expression, pregnancy, sexual orientation, disability, marital status, or any other characteristic protected under applicable federal or state law.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W-9 (Rev. October 2018), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. MODIFICATION OF AGREEMENT
The tasks described in this AGREEM ENT and all other terms of this AGREEMENT may be modified only upon mutual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this AGREEMENT.
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27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposals and submitted representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Michelle Greene, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attention: Jeff Edwards, Vice President
MNS Engineers, Inc.
201 N. Calle Cesar Chavez, Suite 300
Santa Barbara, CA 93101
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32. COUNTERPARTS AND ELECTRONIC/FACSIMILE SIGNATURES
This Agreement may be executed in several counterparts, which may be facsimile or electronic copies. Each counterpart is fully effective as an original, and together constitutes one and the same instrument.
In concurrence and witness whereof , this AGREEMENT has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA CONSULTANT
__________________________ ___________________________ Michelle Greene, City Manager James Salvito, President
A T T E S T
__________________________ ___________________________ Deborah Lopez, City Clerk Jeff Edwards, Vice President
APPROVED AS TO FORM:
MICHAEL JENKINS, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
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EXHIBIT A
SCOPE OF WORK
Project Management Assistance for various CIP Projects:
Possible services include but are not limited to:
x Provide continuous interface with City staff regarding projects. x Coordination with engineering consultants.
x Coordinate with other agencies.
x Provide technical review and comment of consultant deliverables. x Development/maintenance of project schedules.
x Prepare bid-packages.
x Track and monitor project costs.
x Track and monitor project funding.
x Prepare grant funding claims as required.
x Prepare Grant Applications.
x Prepare RFP’s for professional services, as required to continue progress of projects.
x Assist with project bidding, response to bidders’ questions, bid opening. x Provide construction oversight services.
Consultant shall anticipate working on the following CIP Projects during FY 21/22 as part of this scope of work:
x Old Town Sidewalk Improvement Project (Project No. 9031) – Construction complete. Consultant shall provide project construction and funding (ATP funding) closeout assistance.
x Rectangular Rapid Flashing Beacon at Chapel/Hollister and Pedestrian Hybrid Beacon at Kingston/Calle Real Project (Project No. 9058) – Construction complete. Consultant shall provide project construction and funding (HSIP funding) closeout assistance.
x Goleta Traffic Safety Study (Project No. 9089) – Consultant shall finalize study/report, have City Council adopt the study/report, and funding closeout assistance (HSIP/SSARP funding).
x Storke/Hollister Transit, Bike/Pedestrian, and Median Improvements (Project No. 9062) – Consultant shall initiate and finalize design, advertise for construction, and award a construction contract.
x Citywide Traffic Signal Upgrades (Project No. 9083) – Consultant shall provide manage and adhere to HSIP funding requirements, consultant selection, award design agreement, initiate and finalize design, advertise for construction and award a construction contract.
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x Goleta US 101 Overcrossing (project No. 9027) – Consultant shall provide finalize developing project scope of work, present project options and status to City Council, coordinate with Caltrans, and work on project design including all associated work efforts.
x Cathedral Oaks Crib Wall Repair (Project No. 9053) – Consultant shall provide finalize geotechnical report and present options to City Council, consultant selection, award design/environmental agreement, initiate and finalize environmental review and design, advertise for construction and award a construction contract.
x Project management assistance for various CIP projects and CIP related items.
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EXHIBIT B
SCHEDULE OF FEES
Classification Hourl y Rate
Supervision Senior Engineer 175.00
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