Consultant.
6.7.1. The Consultant shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultant’s employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished or relating to the Consultant’s work or services. Acceptance of payment shall be any negotiation of the City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an Agreement for Professional Services
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assumption of such responsibility or liability by the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the City’s review of the Consultant’s report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the 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 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.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 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.
6.17 Attorneys' Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys' fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City Agreement for Professional Services
Rincon Consultants, Inc.
and the Consultant.
6.19 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:
CITY: Steve McClary CONSULTANT: Torin R. Snyder
City Manager Principal
City of Malibu Rincon Consultants, Inc.
23825 Stuart Ranch Road 1250 East 1st Street, Suite 301 Malibu, CA 90265-4861 Los Angeles, CA 90012
TEL (310) 456-2489 x 226 TEL (805) 644-4455 x 219
FAX (310) 456-2760
6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a “consultant” for the purposes of the California Political Reform Act because Consultant’s duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would otherwise be required were Consultant employed by the City. Consultant hereby acknowledges his or her assuming-office, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the City’s Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the City’s Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultant’s disclosure obligations in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a “consultant” for the purpose of the California Political Reform Act because Consultant’s duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the City’s Conflict Agreement for Professional Services
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of Interest Code.
City Initials ______
Consultant Initials ______
This Agreement is executed on _____________________, at Malibu, California, and effective as of July 1, 2024.
CONSULTANT:
_______________________________
By: TORIN SNYDER, Principal
Rincon Consultants, Inc.
CITY OF MALIBU:
___________________________________
STEVE UHRING, Mayor
ATTEST:
___________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
___________________________________
TREVOR RUSIN, Interim City Attorney
TRS
Agreement for Professional Services
Rincon Consultants, Inc.
EXHIBIT A
SCOPE OF WORK
Task 1. Wastewater Management Program Specialist
Provides services related to the City’s wastewater management program, which includes Onsite Wastewater Treatment System (OWTS) and Local Agency Management Program (LAMP). Tasks and assignments include, but are not limited to the following:
a. Complete daily tasks at City Hall Monday-Friday (8AM-5PM), including Operating Permit issuance and correspondence with City Registered Inspectors to maintain compliance with Malibu Municipal Code Chapter 15.44.030. b. Attend and lead Environmental Sustainability Department meetings, taking meeting notes, creating departmental review schedules, tracking deadlines, and setting action items for the team members to execute.
c. Develop and implement a strategic approach for award and grant applications on behalf of the City, with check-ins to occur on a monthly basis and summary reported weekly.
d. Complete reviews for OWTS Compliance and refer cases to Code Enforcement, with approval from the Environmental Health Administrator, as needed. e. Work with Malibu residents at the Environmental Health Public Counter to support permitting.
f. Support and/or manage the Frequent Pumping Program, ensuring compliance with the Malibu Municipal Code and the LAMP.
g. Coordinate with City Registered Inspectors to manage the OWTS Practitioner Registration Program
h. Provide ongoing data management and quality assurance for OWTS Type of System Tracking for the proposed Civic Center Wastewater Facility Phases 1 through 3.
i. Provide support for City events
Task 2. Wastewater and Water Quality Management Services in Support of the Environmental Health Administrator
Assists in planning, directing, administering, and evaluating the citywide Wastewater Management Program, including the development and implementation of new ordinances and regulations to promote the facilitation of decentralized wastewater treatment facilities, safety inspections, training and policy administration. Provides complex professional staff assistance to the Environmental Sustainability Director or designee in areas of expertise. a. Complete daily tasks at City Hall Monday-Friday (8AM-5PM), including Over the Counter (OC) services for Environmental Health Reviews at the Environmental Health Public Counter Monday-Friday (8AM-12PM).
b. Provide exceptional customer service to answer various questions at the Environmental Health Public Counter for permit-related questions.
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c. Provide professional and specialized expertise to support City staff preparing regulatory reports, such as the annual and 5-year LAMP report. Assist and/or lead the following Water Quality Programs:
• Federal Clean Water Act
• National Pollutant Discharge Elimination System (NPDES) • Local Agency Management Program (LAMP)
• Salt and Nutrient Management Plan (SNMP)
• Municipal Separate Storm Sewer Systems (MS4) Regional Permit • Area of Special Biological Significance (ASBS)
• Safe Clean Water Program (Measure W)
d. Provide strategic regulatory analysis and guidance to support water quality compliance program challenges.
e. Collaborate with City staff from various departments, including Public Works and City Attorney’s office, to support specific tasks related to regulatory or legal issues. f. Provide GIS spatial analysis and mapping services, as well as database development and/or maintenance to support the LAMP in accordance with the Malibu Municipal Code Chapter 15.
g. Provide strategic regulatory analysis and guidance to support water quality compliance program challenges, including assisting in the preparation of comment letters to regulatory agencies and other interested parties.
Task 3. Environmental Compliance Services in Support of the Environmental Programs Coordinator
Assumes a pivotal role in the strategic planning, organization, and management of comprehensive environmental initiatives, including oversight of stormwater management, clean water programs, solid waste management, recycling, and adherence to NPDES policies.
Duties encompass conducting regulatory inspections, providing training, developing policies, and coordinating diverse environmental programs. The role entails vigilant monitoring of legislative and technological changes, ensuring legal compliance, and responding to citizen inquiries, thereby contributing significantly to the City's overarching environmental sustainability objectives.
a. Complete daily tasks at City Hall Monday-Friday (8AM-5PM). Lead and/or support field inspection activities for variety of compliance programs and Malibu Municipal Code requirements.
b. Provide professional and specialized expertise to support technical and regulatory considerations related to the Water Quality Control Plan for Ocean Waters of California (Ocean Plan), ASBS, Stormwater Construction General Permit, Regional MS4 Permit, and Total Maximum Daily Loads.
c. Provide professional and specialized expertise to support City staff preparing regulatory reports, such as the MS4 Permit annual and semi-annual reports.
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d. Provide trained field personnel to support inspections for stormwater Best Management Practices, Illicit Discharge Detection and Elimination, stormwater outfalls, slope failures, etc.
e. Develop and/or implement water quality and environmental monitoring workplans to investigate non-stormwater discharges, stormwater outfall screening, and other related field sampling and monitoring programs.
f. Prepare submittals to the Los Angeles Regional Water Quality Control Board and/or State Water Resources Control Board for limited modifications to existing program plans and documents, including:
• Watershed Management Program
• Coordinated Implementation Monitoring Program
• Trash Monitoring and Report Programs
• Other compliance plans, as necessary
g. Prepare and/or provide training modules to City staff and contractors to meet compliance requirements of compliance programs and plans, especially the Regional MS4 Permit and Watershed Management Program.
h. Provide spill and emergency response services:
• Coordination of transportation of hazardous or liquid waste by licensed and authorized hazardous waste hauler with availability 24 hours per day, 365 days per year; waste manifesting; and report preparation (understood to be limited evening hours).
• Soil, water, and air sample collection; on-site testing (if applicable); coordination of laboratory analysis on collected samples; waste profiling; identification of options for landfill or treatment, storage and disposal facilities.
• For any emergency work, an environmental consulting representative shall be at the City’s field response site within two (2) hours of the original call to the Consultant.
• Provide support for City events
Task 4. Environmental Program Implementation Services in Support of the Environmental Sustainability Analyst
Conducts research, studies, and assessments on environmental and sustainability matters, presenting strategic recommendations aligned with the goals of the Environmental Sustainability Department. Responsibilities encompass the development, coordination, and administration of programs in critical areas such as clean water, energy efficiency, green building, and hazardous materials management. Involved in active participation in key initiatives, including solar energy improvements and the transition to an electric vehicle fleet, while ensuring compliance with regulatory obligations and implementing policies to uphold environmental programs.
a. Complete daily tasks at City Hall Monday-Friday (8AM-5PM).
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b. Represent the City and record notes for miscellaneous meetings, such as the Malibu Area Conservation Coalition (MACC) and the Clean Power Alliance (CPA).
c. Provide data management services to provide timely research and queries to support City staff and public with various inquiries.
d. Provide support for Construction and Demolition (C&D) Recycling Reports. e. Assist with Peer Review on presentations, social media posts, award applications, and grant reporting and/or applications, which may include conducting research and outreach with other City departments, Agencies, Non-Governmental Organizations, and other entities.
f. Provide regulatory analysis and synthesis to review current and proposed environmental regulations to determine impacts to the City. g. Develop draft and final comment letters on behalf of the City to public agencies on new and/or amended environmental laws.
h. Provide administrative support to ongoing programs and events, such as Coastal Vulnerability Assessment, Dark Sky Program, and Climate Action and Adaption Planning. This involves participating in public workshops and gaining insights into the legislative framework that underpins the establishment of these programs.
Task 5. General Program Management Support
On Call Environmental Consulting services shall be provided on a time and materials cost basis. Work will be conducted only upon written authorization from the City of Malibu, except verbal authorization for Task 3 spill and emergency response services. Tasks 1-4 above are examples of essential job functions; the Consultant may receive additional assignments based on the current needs of the City.
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EXHIBIT B
COMPENSATION FOR SERVICES
The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule. No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager or designee. On Call consulting services shall be provided on a time and materials cost basis and adhere to contractually agreed upon rates. Work will be conducted only upon authorization from the City of Malibu.
The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month. The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
Rincon Standard Fee Schedule for Environmental Sciences and Planning Services Hourly Rate
Professional, Technical and Support Personnel*
January 1 –
December 31,
2024
January 1 –
December 31,
2025
January 1 –
December 31,
2026
January 1 –
December 31,
2027
Senior Principal $319 $330 $342 $354
Principal $307 $318 $329 $341
Director $307 $318 $329 $341
Senior Supervisor II $292 $302 $313 $324
Supervisor I $272 $282 $292 $302
Senior Professional II $255 $264 $273 $283
Senior Professional I $238 $246 $255 $264
Professional IV $211 $218 $226 $234
Professional III $196 $203 $210 $217
Professional II $174 $180 $186 $193
Professional I $155 $160 $166 $172
Associate III $130 $135 $140 $145
Associate II $117 $121 $125 $129
Associate I $109 $113 $117 $121
Field Technician $94 $97 $100 $104
Data Solutions Architect $196 $203 $210 $217
Senior GIS Specialist $187 $194 $201 $208
GIS/CADD Specialist II $167 $173 $179 $185
GIS/CADD Specialist I $150 $155 $160 $166
Technical Editor $147 $152 $157 $162
Project Accountant $125 $129 $134 $139
Billing Specialist $107 $111 $115 $119
Publishing Specialist $120 $124 $128 $132
Clerical $107 $111 $115 $119
* Professional classifications include environmental scientists, urban planners, biologists, geologists, marine scientists, GHG verifiers, sustainability experts, cultural resources experts, and other professionals. Expert witness services consisting of depositions or in-court testimony are charged at the hourly rate of $400.
**All rates listed above shall include overhead costs including, but not limited to salaries, benefits, Workers Compensation Insurance, office expenses, mileage and courier service. If staff substitutions are necessary, or if staff is promoted, the original rates listed above will still apply.
Agreement for Professional Services
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Rincon Reimbursable Expenses
Direct Cost Rates
Photocopies – B/W $0.25 (single-sided), $0.45 (double-sided) Photocopies – Color $1.55 (single-sided), $3.10 (double-sided) Photocopies – 11” by 17” $0.55 (B/W), $3.40 (color)
Oversized Maps $8.50/square foot
Digital Production $15/CD, $20/flash drive
Light-Duty and Passenger Vehicles* $90/day
4WD and Off-Road Vehicles* $150/day
* Current IRS mileage rate for mileage over 50 and for all miles incurred in employee-owned vehicles.
Other Direct Costs. Other direct costs associated with the execution of a project, that are not included in the hourly rates above, are billed at cost plus 16%. These may include, but are not limited to, laboratory and drilling services, subcontractor services, authorized travel expenses, permit charges and filing fees, mailings and postage, performance bonds, sample handling and shipment, rental equipment, and vehicles other than covered by the above charges.
Annual Escalation. Standard rates increase per year is limited to the Cost-of-Living Adjustment (COLA) as adopted in the City’s budget. All subcontractors shall adhere to this limit to rates increase.
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Equipment Rate
Environmental Site Assessment
Soil Vapor Extraction Monitoring Equipment $160
Four Gas Monitor $137
Flame Ionization Detector $110
Photo Ionization Detector $82
Hand Auger Sampler $62
Water Level Indicator, DC Purge Pump $46
CAPDash $7,500
Natural Resources Field Equipment
UAS Drone $300
Spotting or Fiberoptic Scope $170
Petterson Bat Ultrasound Detector/Recording Equipment $170 Sound Level Metering Field Package (Anemometer, Tripod and Digital Camera) $113 GPS (Sub‐meter Accuracy) $67
Infrared Sensor Digital Camera or Computer Field Equipment $57 Scent Station $23
Laser Rangefinder/Altitude $11
Pit‐fall Traps, Spotlights, Anemometer, GPS Units, Sterilized Sample Jar $9 Mammal Trap, Large/Small $1.55/$0.55 $1.55/$0.55
Water and Marine Resources Equipment
Boat (20 ft. Boston Whaler or Similar) $800
Multi Parameter Sonde (Temp, Cond, Turbidity, DO, pH) with GPS $170 Water Quality Equipment (DO, pH, Turbidity, Refractometer, Temperature) $62 Refractometer (Salinity) or Turbidity Meter $38
Large Block Nets $114
Minnow Trap $98
Net, Hand/Large Seine $57
Field Equipment Packages
Standard Field Package (Digital Camera, GPS, Thermometer, Binoculars, Tablet, Safety Equipment, and Botanic Collecting Equipment)
$114
Remote Field Package (Digital Camera, GPS, Thermometer, Binoculars, Tablet and Mifi, Delorme Satellite Beacon, 24‐Hour Safety Phone)
$144
Amphibian/Vernal Pool Field Package (Digital Camera, GPS, Thermometer, Decon Chlorine, Waders, Float Tube, Hand Net, Field Microscope)
$170
Fisheries Equipment Package (Waders, Wetsuits, Dip Nets, Seine Nets, Bubblers, Buckets) $57 Underwater and Marine Sampling Gear (U/W Photo/Video Camera, Scuba Equipment (Tanks, BCD, Regulators, Wetsuits, etc.)
$57/diver
Marine Field Package (PFDs – Personal Flotation Devices, 100-foot Reel Tapes with Stainless Carabiners, Pelican Floats, Underwater Slates, Thermometer, Refractometer, Anemometer, Various Field Guides) $100
Insurance, Hazard and Fees
Historic Research Fees $55
L&H Dive Insurance $57/diver
Level C Health and Safety $70/person
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Larry Walker Associates Rate Sheet
Title Rate ($/hr) Reimbursable Costs
Administrative $83 Travel
Contract Coordinator $150 Local Mileage Current IRS Rate AR/AP Manager $150 Transportation Actual Expense
Graphic Designer $139 Auto Rental Actual Expense
Senior Graphic Designer $180 Fares Actual Expense
Project Staff I-C $145 Room Actual Expense
Project Staff I-B $175 Subsistence and Per Diem Meals1 Current GSA Rate Project Staff I-A $203 Breakfast Current GSA Rate
Project Staff II-B $215 Lunch Current GSA Rate
Project Staff II-A $243 Dinner Current GSA Rate
Senior Staff I $262 Incidentals Current GSA Rate
Senior Staff II $282 Report Production and Copying
Associate I $299 Per Color Copy, In-House $0.89
Associate II $316 Per Black and White Copy, In-House $0.08 Vice President $333 Per Binding, In-House $1.95
Executive Vice President $349 Special Postage and Express Mail Actual Expense Senior Executive $365 Third-Party Material Preparation Actual Expense President $365 Other Direct Costs Actual Expense
Daily Equipment Rental Rates
Single Parameter Meters & Equipment $30.00
Digital Flow Meter $60.00
Multi-Parameter Field Meters & Sondes $100.00
RTK-GPS, RiverSurveyor, Tracer Study Equipment $250.00
Multi-Parameter Continuous Remote Sensing $40.00
Field Rig (Field Vehicle and All Equipment) $200.00
Subcontractors Actual Expense Plus 10% Fee
1 Charged when overnight lodging is required. U.S. General Services Administration rates specified by location of work at gsa.gov
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Yeh and Associates Standard Fee Schedule
Hourly Rate
Classification FY 24/25 FY 25/26 FY 26/27
Professional Services
Principal $235 $242 $249
Senior Project Manager, Engineer or Geologist $220 $227 $233 Senior Project Specialist $210 $216 $223
Project Manager, Associate Engineer or Associate Geologist $190 $196 $202 Senior Project Engineer or Geologist $165 $170 $175
Project Engineer or Geologist $150 $155 $159
Senior Staff Engineer or Geologist $135 $139 $143
Staff Engineer or Geologist $120 $124 $127
Engineer or Geologist Intern $75 $77 $80
Resident Construction Engineer $220 $227 $233
Construction Manager $185 $191 $196
Construction Observer $160 $165 $170
Laboratory Supervisor $135 $139 $143
CAD Designer $155 $160 $164
Project Controller $165 $170 $175
Administrative Assistant $100 $103 $106
Overtime rates for Construction Observation and Office Staff are 1.5x rates shown.
Laboratory tests are quoted on separate schedule or cost-plus 10 percent for outside laboratory testing when applicable.
Fees for expert witness preparation, testimony, court appearances, or depositions will be billed at the rate of $400 per hour.
Rates do not include prevailing wages for field services. Prevailing wages will be determined on a project-by-project basis.
Other Direct Charges
Subcontracted services, copying and rented equipment Cost Plus 10% Travel, subsistence, and expenses Cost Plus 10%
Vehicle $85/day
Automobile Mileage Current IRS Rate
Hand Auger Kit $300/day
Slope Inclinometer and readout $150/day
Non-Billable Administrative Overhead
The Consultant will bill only for time spent performing assigned professional work. All other activities associated with carrying out the contract are not billable and are therefore considered overhead or administrative functions contained within the hourly rate. Typical examples of nonbillable overhead activities are:
• Discussion with staff or applicant about the cost of services or to address billing disputes. • Meetings to discuss work performance, contract or additional services. • Travel time to and from the City of Malibu.
• Preparation of invoices and other administrative clerical services. • Contract administration, such as preparing or discussing contract amendments. • Time spent resolving errors in the event the Consultant is responsible.
Agreement for Professional Services
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EXHIBIT C
INSURANCE LANGUAGE
Without limiting Consultant’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident.
Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain 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 and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
OTHER PROVISIONS OR REQUIREMENTS
Proof of Insurance. Consultant shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of Coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the Agreement for Professional Services
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performance of the Work hereunder by Consultant, their agents, representatives, employees, or subconsultants.
Primary/Noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.
City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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. In the alternative, City may cancel this Agreement.
Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Contract Provisions (Non Estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
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Rincon Consultants, Inc.
Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the City immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
Additional Insured Status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition Of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests’ provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the City, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor. Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to City for review.
City’s Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days’ advance written notice of such change. If such a change results in substantial additional costs to the Consultant, the City and Consultant may renegotiate the Consultant’s compensation.
Agreement for Professional Services
Rincon Consultants, Inc.
Self-Insured Retentions. Any self-insured retentions must be declared to and approved by the City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Timely Notice Of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance. The consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
Agenda Item # 3.B.9
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Tracey Rossine, Environmental Programs Manager Reviewed by: Yolanda Bundy, Environmental Sustainability Director Approved by: Steve McClary, City Manager
Date prepared: May 8, 2024 Meeting date: May 28, 2024
Subject: Professional Services Agreement for Plan Check Consulting Services RECOMMENDED ACTION: 1) Authorize the Mayor to execute a professional services agreement with True North Compliance Services to provide primary plan check consulting services; and 2) Authorize the Mayor to execute a professional services agreement with CSG Consultants as a secondary consultant.
FISCAL IMPACT: No additional appropriation is required. Funding for these services was included in the Adopted Budget for FY 2023-24 and Proposed Budget for FY 2024- 25 in Account No. 101-2004-5100 (Building Safety Professional Services). All costs will be generated as a percentage of the total plan check fee. Staff has negotiated this percentage with the consultant and determined the fees to be competitive within the industry, as outlined in Exhibit B of the Agreement.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: On March 4, 2024, a Request for Proposal (RFP) for Malibu Plan Check Consulting Services was distributed. The RFP required applicants to enumerate the firm’s capabilities and experience in providing these requested services. In addition, the identification of primary personnel for each firm was required. The City received a proposal from the following firms:
1. 4Leaf, Inc.
2. BPR Consulting Group
3. Bureau Veritas North America
City Council Meeting
05-28-24
Item
3.B.9
Agenda Item # 3.B.9
4. CSG Consultants
5. Interwest Consulting Group
6. Jason Addison Smith Consulting Services, Inc. (“JAS Pacific”)
7. J. Lee Engineering, Inc.
8. m6 Consulting
9. Plan Review Consultants, Inc. (“PRC”)
10. RKA Consulting Group
11. TRANSTECH Engineers, Inc.
12. True North Compliance Services
13. Construction Testing and Engineering South, Inc. (“UES”)
14. The Code Group, Inc. (“VCA Code”)
After staff reviewed all the proposals, three firms were granted qualification interviews:
True North Compliance Services, CSG Consultants, and Bureau Veritas North America.
The interviews were conducted at City Hall on April 15, 2024. Each firm’s interview presentation and RFP package were evaluated, and ability to meet the criteria listed in the RFP determined a selection.
Staff recommends authorizing the Mayor to execute an agreement with True North Compliance Services as a primary contract and CSG Consultants as a secondary contract based on the quality of the proposals and the interview presentations. The City has previously utilized True North Compliance Services to provide these specialized consulting services and has consistently received excellent service. The secondary consultant, CSG Consultants, will serve as a backup contractor available to provide services for overflow work and special projects, should the primary contract consultant be delegated other priorities.
The secondary consultant will facilitate any additional review demands should the goal of a ten-day turn-around-time become unobtainable by the primary consultant or should the primary consultant be delegated other priorities by the City.
ATTACHMENTS:
1. Professional Services Agreement with True North Compliance Services
2. Professional Services Agreement with CSG Consultants
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of May 28, 2024 by and between the City of Malibu (hereinafter referred to as the "City"), and True North Compliance Services, Inc. (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out for consulting services for certain projects relating to plan check consulting services.
C. The Consultant warrants to the City that it has the qualifications, experience and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANT’S SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work, attached to and made part of this Agreement, except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on July 1, 2024, and will remain in effect for a period of two (2) years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or his or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule (Exhibit B). No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee.
Attachment 1
Agreement for Professional Services
True North Compliance Services
4.1 The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month.
The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
5.0 CONFLICT OF INTEREST. The Consultant represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any real property located in the City which may be affected by the services to be performed by the Consultant under this Agreement. The Consultant further represents that in performance of this Agreement, no person having any such interest shall be employed by it.
5.1 The Consultant represents that no City employee or official has a material financial interest in the Consultant’s business. During the term of this Agreement and/or as a result of being awarded this contract, the Consultant shall not offer, encourage or accept any financial interest in the Consultant’s business by any City employee or official.
5.2 If a portion of the Consultant’s services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within the City or with a City franchisee, the Consultant warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.
6.0 GENERAL TERMS AND CONDITIONS.
6.1 Termination. Either the City Manager or the Consultant may terminate this Agreement, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof.
6.1.1 In the event of such termination, all finished or unfinished documents, reports, photographs, films, charts, data, studies, surveys, drawings, models, maps, or other documentation prepared by or in the possession of the Consultant under this Agreement shall be returned to the City. If the City terminates this Agreement without cause, the Consultant shall prepare and shall be entitled to receive compensation pursuant to a close-out bill for services rendered and fees incurred pursuant to this Agreement through the notice of termination.
If the Consultant terminates this Agreement without cause, the Consultant shall be paid only for those services completed in a manner satisfactory to the City.
6.1.2 If the Consultant or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant or the City violate any of the covenants, agreements, or stipulations of this Agreement, the Consultant or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. The Consultant shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, the Consultants shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement and any payments due under this Agreement may be withheld to off-set anticipated damages.
Agreement for Professional Services
True North Compliance Services
6.2 Non-Assignability. The Consultant shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.
6.3 Non-Discrimination. The Consultant shall not discriminate as to race, creed, gender, color, national origin, or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments.
6.4 Insurance. The Consultant shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than one (1) day prior to beginning of performance under this Agreement. Consultant further agrees to comply with all provisions in the attached Exhibit B which is incorporated herein.
6.5 Indemnification.
To the fullest extent permitted by law, Consultant shall indemnify and hold harmless City and any and all of its officials, employees, agents, and/or volunteers (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs, and expenses, including attorney’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any agency or individual that Consultant shall bear the legal liability thereof) in the performance of services under this Agreement. Consultant’s duty to indemnify and hold harmless City shall not extend to the City’s sole or active negligence or willful misconduct.
6.5.1. Duty to defend:
In the event the Indemnified Parties, individually or collectively, are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the services encompassed by this Agreement, and upon demand by City, Consultant shall defend the Indemnified Parties at Consultant’s cost or at City’s option, to reimburse City for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by Consultant’s negligent acts, errors or omissions. Payment by City is not a condition precedent to enforcement of this provision. In the event of any dispute between Consultant and City, as to whether liability arises from the sole or active negligence or willful misconduct of the City or its officers, employees, or agents, Consultant will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating the Indemnified Parties as solely or actively negligent or to have acted with willful misconduct. Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees, and costs of litigation.
6.6 Compliance with Applicable Law. The Consultant and the City shall comply with all applicable laws, ordinances, and codes of the federal, state, county, and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.
6.7 Independent Contractor. This Agreement is by and between the City and the Consultant and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture, or association, as between the City and the Agreement for Professional Services
True North Compliance Services
Consultant.
6.7.1. The Consultant shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultant’s employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished or relating to the Consultant’s work or services. Acceptance of payment shall be any negotiation of the City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an Agreement for Professional Services
True North Compliance Services
assumption of such responsibility or liability by the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the City’s review of the Consultant’s report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the 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 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.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 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.
6.17 Attorneys' Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys' fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City Agreement for Professional Services
True North Compliance Services
and the Consultant.
6.19 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:
CITY: Steve McClary CONSULTANT: Isam Hasenin
City Manager President
City of Malibu True North Compliance
Services, Inc.
23825 Stuart Ranch Road 3939 Atlantic Ave., Suite 224
Malibu, CA 90265-4861 Long Beach, CA 90807
TEL (310) 456-2489 x 226 TEL (858) 260-0495
FAX (310) 456-2760
6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a “consultant” for the purposes of the California Political Reform Act because Consultant’s duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would otherwise be required were Consultant employed by the City. Consultant hereby acknowledges his or her assuming-office, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the City’s Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the City’s Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultant’s disclosure obligations in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a “consultant” for the purpose of the California Political Reform Act because Consultant’s duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the City’s Conflict Agreement for Professional Services
True North Compliance Services
of Interest Code.
City Initials ______
Consultant Initials ______
This Agreement is executed on May 28, 2024, at Malibu, California, and effective as of July 1, 2024.
CONSULTANT:
_______________________________
By: ISAM HASENIN, President
True North Compliance Services
CITY OF MALIBU:
___________________________________
STEVE UHRING, Mayor
ATTEST:
___________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
___________________________________
TREVOR RUSIN, Interim City Attorney
Agreement for Professional Services
True North Compliance Services
EXHIBIT A
SCOPE OF WORK
Building/Grading & Drainage:
1. Review all building construction documents for compliance with the California Building Code (CBC), Mechanical Code (CMC), Plumbing Code (CPC), Electrical Code (CEC), and Energy Code as amended by Los Angeles County, as amended by the City of Malibu.
2. Review Grading and Drainage documents for compliance with the California Building Code (CBC) as amended by the County of Los Angeles (Appendix J), as amended by the City of Malibu.
3. Review all development documents as requested by the City.
4. Project review services shall be completed utilizing the City’s adopted plan review software (e.g., Bluebeam Studios) to, for example, markup plans with corrections and redlines and/or coordinate with other internal departments.
5. Prepare grading bond calculations based on the City’s grading bond formula.
6. Perform all plan checks at consultant’s offices.
7. Provide plan review staff for routine office hours at City Hall, 8:00 AM - 5:00 PM. The days for such services will be adjusted if mutually agreed upon with the City.
8. Maintain one (1) individual as the contact for all communication with the City.
9. Furnish assigned personnel with all necessary materials, resources, and training to conduct plan check, including a current copy of applicable City amendments, policies, procedures, and forms.
10. Provide the permit applicant designee and the City a list of items needing clarification or change to achieve conformance with all State, Federal, or local regulations.
11. Perform plan reviews of revisions to plans that have been previously approved for permit issuance.
12. Plan check approval shall not be recommended to the City until all code compliance issues are resolved to the best of the applicant’s knowledge, and all permit issuance requirements of the City have been satisfied.
13. Respond within one business day upon each notification that a plan check is authorized.
14. Supply pick-up and delivery of all documents daily. If plans are not submitted electronically, Consultant will coordinate the pickup and return of all plans via Consultant staff or a licensed courier service.
Agreement for Professional Services
True North Compliance Services
15. Perform plan check services within ten (10) business days upon receipt notification that a plan check has been authorized.
16. Conduct and coordinate all communications with clients during the process of completing authorized plan check, and shall copy the City on all correspondence.
17. Receive final review and approval by the City on all Code interpretations.
18. Respond within one (1) business day to questions from the City generated during field inspection for each authorized plan check that is subsequently issued a permit for construction.
19. Attend and participate in local and regional meetings on behalf of the City; including locations other than Consultants office and Malibu City Hall.
20. Calculate/Recalculate all plan check and permit fees based on the City’s most current fee schedule.
21. Accept any and all documents electronically; including utilization of OnBase (records management system) and any additional electronic formats accepted by the City.
22. Provide Code training for City staff, including graphic handout materials.
23. Prepare and coordinate all required documents and presentations for the City’s adoption of the Malibu Building Codes (County of Los Angeles Building Code with Seismic Amendments). This shall include preparation of presentation to City Council for final adoption.
24. Make presentations to City Council, public and other agencies as requested by City staff.
25. The City will provide Consultant with a monthly report of Building Plan Check fees submitted to the City. The report shall include:
• Plan Check Number
• Project Status
• Street Address
• Valuation (if provided)
• Class
• Fees Collected on the Project
Agreement for Professional Services
True North Compliance Services
EXHIBIT B
COMPENSATION FOR SERVICES
The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule. No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee.
The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month. The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
Percentage Fee Services:
Percentage Fees shall include an initial review and two (2) rechecks for a total of three (3), hourly rates apply thereafter – prior notification must be given to City staff. Daily courier fees included.
Plan Check Services Percentage
Complete Plan Review 65% of City’s collected fees
Structural Only Plan Review 35% of City’s collected fees Electrical, Plumbing, or Mechanical Plan Review 65% of City’s collected fees Grading, Drainage and Erosion Control Plan
Review
65% of City’s collected fees
Onsite Wastewater Treatment System Plan Review 65% of City’s collected fees Review for Changes to Previously Approved Plans See below hourly rates Review After Three (3) Checks (prior approval
required)
See below hourly rates
Plan Check Engineer $130.00 per hour
Certified Plans Examiner I $100.00 per hour
Certified Plans Examiner II $110.00 per hour
Certified Accessibility Specialist $125.00 per hour
Inspector I / II $90.00 / $100.00 per hour
Senior Building Inspector $115.00 per hour
Training / Presentations / Staff Requested Meetings $140.00 per hour Agreement for Professional Services
True North Compliance Services
Hourly Rates: Consultant shall obtain authorization by the City prior to proceeding with additional services (overtime services) provided outside of normal business hours.
Position Hourly Rate
Interim Certified Building Official $155.00
Plan Review Engineer $130.00
Senior Structural Engineer $145.00
Licensed Fire Protection Engineer $135.00
Certified Plans Examiner I $100.00
Certified Plans Examiner II $110.00
Building/Housing Inspector I $90.00
Building/Housing Inspector II $100.00
Senior Building/Housing Inspector $115.00
CASp Plan Reviewer/Inspector $125.00
Fire Plan Reviewer/Inspector $120.00
Permit Technician I $70.00
Permit Technician II $80.00
*Prevailing Wage, Straight Time
Position Staff Name
Principal Isam Hasenin, PE, CBO, MSCE
Plan Review Engineer Amar Hasenin, Bachar Koujah,
Robert Chun, Scot Weisse,
Mohammed Elassad, Ali Soheili,
Alaa Atassi, Amir Amiri, Areli
Sanchez, Bryan Montes, Richard
Moreno, Hassan Itani, Ali Almurshid,
Bashi Haboub
Agreement for Professional Services
True North Compliance Services
Senior Structural Engineer Allen Lang, Gary Ho, Hamid
Irannejad, Henry Hadidi, Daniel Lee
Mohammed Hariri,
Licensed Fire Protection Engineer Doug Evans, Scot Deal, Eric Schmidt Certified Plans Examiner I Brenda Sylvester
Certified Plans Examiner II Kevin Ybarra, Rene Avela, Gil Estrada, Jasmine Abusafaqa
Building/Housing Inspector I Mehmet Emirolgo, Bryan Montes, Rede Twelde
Building/Housing Inspector II Duncan McLane, Randy Kilburn, Rene Avela
Senior Building/Housing Inspector George Lockfort, Steve Stingl, Tom Graham
CASp Plan Reviewer/Inspector Dan Larson, Bachar Koujah
Fire Plan Reviewer/Inspector Gabriel Reza, Bob Scott,
Permit Technician I Ciera Smith, Brenda Diaz, Michele
Bush
Permit Technician II Alexandra Perkins, Jesica Miner,
Gianni Haley, Roy Kim
All rates listed above shall include overhead costs including, but not limited to salaries, benefits, Workers Compensation Insurance, office expenses, mileage and courier service. If staff substitutions are necessary, or if staff is promoted, the original rates listed above will still apply.
Annual Escalation. Standard rates increase per year is limited to the Cost of Living Adjustment (COLA) as adopted in the City’s budget. All subcontractors shall adhere to this limit to rates increase.
Non-Billable Administrative Overhead
The Consultant will bill only for time spent performing assigned professional work. All other activities associated with carrying out the contract are not billable, and are therefore, considered overhead or administrative functions contained within the hourly rate. Typical examples of nonbillable overhead activities are:
• Discussion with staff or applicant about the cost of services or to address billing disputes.
Agreement for Professional Services
True North Compliance Services
• Meetings to discuss work performance, contract or additional services. • Travel time to and from the City of Malibu.
• Preparation of invoices and other administrative clerical services. • Contract administration, such as preparing or discussing contract amendments. • Time spent resolving errors in the event the Consultant is responsible.
Agreement for Professional Services
True North Compliance Services
EXHIBIT C
INSURANCE LANGUAGE
Without limiting Consultant’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident.
Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain 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 and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
OTHER PROVISIONS OR REQUIREMENTS
Proof of Insurance. Consultant shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of Coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the Agreement for Professional Services
True North Compliance Services
performance of the Work hereunder by Consultant, their agents, representatives, employees, or subconsultants.
Primary/Noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.
City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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. In the alternative, City may cancel this Agreement.
Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Contract Provisions (Non Estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
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Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the City immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
Additional Insured Status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition Of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests’ provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the City, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor. Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to City for review.
City’s Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days’ advance written notice of such change. If such a change results in substantial additional costs to the Consultant, the City and Consultant may renegotiate the Consultant’s compensation.
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Self-Insured Retentions. Any self-insured retentions must be declared to and approved by the City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Timely Notice Of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance. The consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of May 28, 2024 by and between the City of Malibu (hereinafter referred to as the "City"), and CSG Consultants (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out for consulting services for certain projects relating to plan check consulting services.
C. The Consultant warrants to the City that it has the qualifications, experience and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANT’S SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work, attached to and made part of this Agreement, except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on June 1, 2024, and will remain in effect for a period of two (2) years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or his or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule (Exhibit B). No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee.
Attachment 2
Agreement for Professional Services
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4.1 The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month.
The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
5.0 CONFLICT OF INTEREST. The Consultant represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any real property located in the City which may be affected by the services to be performed by the Consultant under this Agreement. The Consultant further represents that in performance of this Agreement, no person having any such interest shall be employed by it.
5.1 The Consultant represents that no City employee or official has a material financial interest in the Consultant’s business. During the term of this Agreement and/or as a result of being awarded this contract, the Consultant shall not offer, encourage or accept any financial interest in the Consultant’s business by any City employee or official.
5.2 If a portion of the Consultant’s services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within the City or with a City franchisee, the Consultant warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.
6.0 GENERAL TERMS AND CONDITIONS.
6.1 Termination. Either the City Manager or the Consultant may terminate this Agreement, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof.
6.1.1 In the event of such termination, all finished or unfinished documents, reports, photographs, films, charts, data, studies, surveys, drawings, models, maps, or other documentation prepared by or in the possession of the Consultant under this Agreement shall be returned to the City. If the City terminates this Agreement without cause, the Consultant shall prepare and shall be entitled to receive compensation pursuant to a close-out bill for services rendered and fees incurred pursuant to this Agreement through the notice of termination.
If the Consultant terminates this Agreement without cause, the Consultant shall be paid only for those services completed in a manner satisfactory to the City.
6.1.2 If the Consultant or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant or the City violate any of the covenants, agreements, or stipulations of this Agreement, the Consultant or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. The Consultant shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, the Consultants shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement and any payments due under this Agreement may be withheld to off-set anticipated damages.
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6.2 Non-Assignability. The Consultant shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.
6.3 Non-Discrimination. The Consultant shall not discriminate as to race, creed, gender, color, national origin, or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments.
6.4 Insurance. The Consultant shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than one (1) day prior to beginning of performance under this Agreement. Consultant further agrees to comply with all provisions in the attached Exhibit B which is incorporated herein.
6.5 Indemnification.
To the fullest extent permitted by law, Consultant shall indemnify and hold harmless City and any and all of its officials, employees, agents, and/or volunteers (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs, and expenses, including attorney’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any agency or individual that Consultant shall bear the legal liability thereof) in the performance of services under this Agreement. Consultant’s duty to indemnify and hold harmless City shall not extend to the City’s sole or active negligence or willful misconduct.
6.5.1. Duty to defend:
In the event the Indemnified Parties, individually or collectively, are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the services encompassed by this Agreement, and upon demand by City, Consultant shall defend the Indemnified Parties at Consultant’s cost or at City’s option, to reimburse City for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by Consultant’s negligent acts, errors or omissions. Payment by City is not a condition precedent to enforcement of this provision. In the event of any dispute between Consultant and City, as to whether liability arises from the sole or active negligence or willful misconduct of the City or its officers, employees, or agents, Consultant will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating the Indemnified Parties as solely or actively negligent or to have acted with willful misconduct. Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees, and costs of litigation.
6.6 Compliance with Applicable Law. The Consultant and the City shall comply with all applicable laws, ordinances, and codes of the federal, state, county, and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.
6.7 Independent Contractor. This Agreement is by and between the City and the Consultant and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture, or association, as between the City and the Agreement for Professional Services
CSG Consultants
Consultant.
6.7.1. The Consultant shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultant’s employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished or relating to the Consultant’s work or services. Acceptance of payment shall be any negotiation of the City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an Agreement for Professional Services
CSG Consultants
assumption of such responsibility or liability by the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the City’s review of the Consultant’s report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the 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 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.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 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.
6.17 Attorneys' Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys' fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City Agreement for Professional Services
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and the Consultant.
6.19 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:
CITY: Steve McClary CONSULTANT: Cyrus Kianpour
City Manager President
City of Malibu CSG Consultants
23825 Stuart Ranch Road 806 9th Street, Suite 2A
Malibu, CA 90265-4861 Paso Robles, CA 93446
TEL (310) 456-2489 x 226 TEL (805) 693-2670
FAX (310) 456-2760
6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a “consultant” for the purposes of the California Political Reform Act because Consultant’s duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would otherwise be required were Consultant employed by the City. Consultant hereby acknowledges his or her assuming-office, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the City’s Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the City’s Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultant’s disclosure obligations in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a “consultant” for the purpose of the California Political Reform Act because Consultant’s duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the City’s Conflict of Interest Code.
CK
Agreement for Professional Services
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City Initials ______
Consultant Initials ______
This Agreement is executed on May 28, 2024, at Malibu, California, and effective as of June 1, 2024.
CONSULTANT:
_______________________________
By: CYRUS KIANPOUR, President
CSG Consultants
CITY OF MALIBU:
___________________________________
STEVE UHRING, Mayor
ATTEST:
___________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
___________________________________
TREVOR RUSIN, Interim City Attorney
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Agreement for Professional Services
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EXHIBIT A
SCOPE OF WORK
Building/Grading & Drainage:
1. Review all building construction documents for compliance with the California Building Code (CBC), Mechanical Code (CMC), Plumbing Code (CPC), Electrical Code (CEC), and Energy Code as amended by Los Angeles County, as amended by the City of Malibu.
2. Review Grading and Drainage documents for compliance with the California Building Code (CBC) as amended by the County of Los Angeles (Appendix J), as amended by the City of Malibu.
3. Review all development documents as requested by the City.
4. Project review services shall be completed utilizing the City’s adopted plan review software (e.g., Bluebeam Studios) to, for example, markup plans with corrections and redlines and/or coordinate with other internal departments.
5. Prepare grading bond calculations based on the City’s grading bond formula.
6. Perform plan checks at consultant’s offices.
7. Provide plan review staff for routine office hours at City Hall, 8:00 AM - 5:00 PM. The days for such services will be adjusted if mutually agreed upon with the City.
8. Maintain one (1) individual as the contact for all communication with the City.
9. Furnish assigned personnel with all necessary materials, resources, and training to conduct plan check, including a current copy of applicable City amendments, policies, procedures, and forms.
10. Provide the permit applicant designee and the City a list of items needing clarification or change to achieve conformance with all State, Federal, or local regulations.
11. Perform plan reviews of revisions to plans that have been previously approved for permit issuance.
12. Plan check approval shall not be recommended to the City until all code compliance issues are resolved to the best of the applicant’s knowledge, and all permit issuance requirements of the City have been satisfied.
13. Respond within one business day upon each notification that a plan check is authorized.
14. Supply pick-up and delivery of all documents daily. If plans are not submitted electronically, Consultant will coordinate the pickup and return of all plans via Consultant staff or a licensed courier service.
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15. Perform plan check services within ten (10) business days upon receipt notification that a plan check has been authorized.
16. Conduct and coordinate all communications with clients during the process of completing authorized plan check, and shall copy the City on all correspondence.
17. Receive final review and approval by the City on all Code interpretations.
18. Respond within one (1) business day to questions from the City generated during field inspection for each authorized plan check that is subsequently issued a permit for construction.
19. Attend and participate in local and regional meetings on behalf of the City; including locations other than Consultants office and Malibu City Hall.
20. Calculate/Recalculate all plan check and permit fees based on the City’s most current fee schedule.
21. Accept any and all documents electronically; including utilization of OnBase (records management system) and any additional electronic formats accepted by the City.
22. Provide Code training for City staff, including graphic handout materials.
23. Prepare and coordinate all required documents and presentations for the City’s adoption of the Malibu Building Codes (County of Los Angeles Building Code with Seismic Amendments). This shall include preparation of presentation to City Council for final adoption.
24. Make presentations to City Council, public and other agencies as requested by City staff.
25. Should the scope of work change or circumstances develop which necessitate special handling, Consultant shall obtain authorization by the City prior to proceeding.
26. Plan reviews for large developments will be billed to the City as a percentage fee (e.g., Exhibit B), and turnaround times will be agreed upon in advance. However, depending on project size and scope, the plan review rate may be adjusted if mutually agreed upon with the City.
27. When requested, Building Grading Plan Review is limited to on-site general grading and drainage within the boundary of the proposed site and the disturbed area. The review is within the scope of the building permit and excludes any off-site reviews or analysis outside the area covered by the building permit and the plan check submittal.
28. For hourly projects only, performance of plan review services utilizing the City’s adopted plan review software (e.g., Bluebeam Studios) to, for example, markup plans with Agreement for Professional Services
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corrections and redlines and/or coordinate with other internal departments, may involve additional time being added to the plan review time at the associated plan review rate.
29. Special Projects may include other tasks and duties as assigned by the City Building Official or designee.
30. The City will provide Consultant with a monthly report of building plan check fees submitted to the City. The report shall include:
• Plan check number
• Project status
• Street address
• Valuation (if provided)
• Class Code
• Fees collected on the project
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EXHIBIT B
COMPENSATION FOR SERVICES
The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule. No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee. The Consultant shall not receive compensation for administrative tasks such as contract management or billing.
The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month. The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
Percentage Fee Services:
Percentage Fees shall include an initial review and two (2) rechecks for a total of three (3), hourly rates apply thereafter – prior notification must be given to City staff. Daily courier fees included.
PERSONNEL / REVIEW TYPE TITLE ALL INCLUSIVE FEE /
HOURLY RATE
Off-Site Building Plan Review by Percentage
Full Building Plan Review by Percentage 65% of City’s Building Plan Check Fees
Structural Only Plan Review by Percentage 35% of City’s Building Plan Check Fees
Expedited Plan Review by Percentage
To Be Negotiated Pending
Project Size and
Requested Turnaround
Timeframe
Minimum Per Plan Review (Except for Residential
Rooftop Mounted Solar Energy System) $350
Off-Site Building Plan Review Hourly Rates
(minimum 1-hour per submittal)
Building Plan Review Project Manager
Deputy Project Manager
Principal Engineer
Senior Structural Engineer
Senior Plan Check Engineer
Senior Plans Examiner
Building Plans Examiner
Building Official
Senior Land Surveyor
$135
Building Plan Review – Professional Engineer $150
Building Plan Review – Structural Engineer $170
Structural Only Plan Review $170
M/E/P Plan Review – Certified Plans Examiner $145
M/E/P Plan Review – Professional Engineer $160
Residential Rooftop-Mounted Solar Energy Systems 1-hour minimum Building Grading Plan Review $170
CASp Plan Review/Consultation $170
Expedited Plan Review (Hourly) 1.5 x Hourly Rate
Building Department Services
Permit Technician (Remote/On-Site) Permit Technician $75 / $95 Senior Permit Technician (Remote/On-Site) Senior Permit Technician $90 / $110 CASp Inspection (See above plan review titles) $170
Building Plan Review (On-Site) (See above plan review titles) Up to $170, pending Title Agreement for Professional Services
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of staff provided
Building Inspector $125
Combination Building Inspector $150
Deputy Building Official $170
Building Official $180
Building Department Special Projects Document Control Manager $150 Administration/Plan Processing
Senior Development Review
Technician
Development Review Technician
$80
All rates listed above shall include overhead costs including, but not limited to salaries, benefits, Workers Compensation Insurance, office expenses, mileage and courier service. If staff substitutions are necessary, or if staff is promoted, the original rates listed above will still apply.
Annual Escalation. Standard rates increase per year is limited to the Cost-of-Living Adjustment (COLA) as adopted in the City’s budget. All subcontractors shall adhere to this limit to rates increase.
Overtime Services. Additional services provided outside of normal business hours will be billed at 1.5x the applicable hourly rate. Consultant shall obtain authorization by the City prior to proceeding.
Publicly Funded Projects. Hourly rates for these specific projects will be based on current prevailing wage rates.
Non-Billable Administrative Overhead
The Consultant will bill only for time spent performing assigned professional work. All other activities associated with carrying out the contract are not billable, and are therefore considered overhead or administrative functions contained within the hourly rate. Typical examples of nonbillable overhead activities are:
• Discussion with staff or applicant about the cost of services or to address billing disputes. • Meetings to discuss work performance, contract or additional services. • Travel time to and from the City of Malibu.
• Preparation of invoices and other administrative clerical services. • Contract administration, such as preparing or discussing contract amendments. • Time spent resolving errors in the event the Consultant is responsible.
Agreement for Professional Services
CSG Consultants
EXHIBIT C
INSURANCE LANGUAGE
Without limiting Consultant’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident.
Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain 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 and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
OTHER PROVISIONS OR REQUIREMENTS
Proof of Insurance. Consultant shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of Coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the Agreement for Professional Services
CSG Consultants
performance of the Work hereunder by Consultant, their agents, representatives, employees, or subconsultants.
Primary/Noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.
City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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. In the alternative, City may cancel this Agreement.
Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Contract Provisions (Non Estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Agreement for Professional Services
CSG Consultants
Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the City immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
Additional Insured Status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition Of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests’ provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the City, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor. Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to City for review.
City’s Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days’ advance written notice of such change. If such a change results in substantial additional costs to the Consultant, the City and Consultant may renegotiate the Consultant’s compensation.
Agreement for Professional Services
CSG Consultants
Self-Insured Retentions. Any self-insured retentions must be declared to and approved by the City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Timely Notice Of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance. The consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Tracey Rossine, Environmental Programs Manager Reviewed by: Yolanda Bundy, Environmental Sustainability Director Approved by: Steve McClary, City Manager
Date prepared: May 8, 2024 Meeting date: May 28, 2024
Subject: Professional Services Agreement for Geotechnical, Coastal Engineering, and Environmental Health Consulting Services RECOMMENDED ACTION: Authorize the Mayor to execute a professional services agreement with Cotton, Shires & Associates, Inc. to provide geotechnical, coastal engineering, and environmental health consulting services.
FISCAL IMPACT: No additional appropriation is required. Funding for these services are included in the Adopted Budget for FY 2023-24 and the Proposed Budget for FY 2024- 25 in Account No. 101-2004-5100 (Building Safety Professional Services) and Account No. 101-2010-5100 (Wastewater Management Professional Services). Funding for these services is generated from fees for geology, geotechnical engineering, and coastal engineering plan check services.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: On February 27, 2024, a Request for Proposals (RFP) for Geotechnical, Coastal Engineering, and Environmental Health Consulting Services was distributed.
The RFP outlined the services requested by the City including engineering geology, geotechnical engineering, coastal engineering, and environmental health reviews. The RFP required applicants to enumerate the firm’s capabilities and experience in providing these requested services. In addition, the identification of primary personnel for each firm was required. The City received a proposal from the following firms:
1. Cotton, Shires and Associates, Inc.
2. ENGEO
City Council Meeting
05-28-24
Item
3.B.10
1
3. Construction Testing & Engineering South, Inc. (“UES”) Staff reviewed the proposals and invited all three firms to participate in qualification interviews. The interviews were conducted at City Hall on April 8, 2024. Each firm’s interview presentation and RFP package were evaluated, and ability to meet the criteria listed in the RFP determined a selection.
Staff recommends authorizing an agreement with Cotton, Shires and Associates based on the quality of the proposal and the interview presentations. The City has previously utilized Cotton, Shires and Associates to provide these specialized consulting services and has consistently received excellent service.
ATTACHMENTS:
1. Professional Services Agreement with Cotton, Shires and Associates, Inc. 2 AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of May 28, 2024 by and between the City of Malibu (hereinafter referred to as the "City"), and Cotton, Shires and Associates, Inc. (hereinafter referred to as "Consultant").
The City and the Consultant agree as follows:
R E C I T A L S
A. The City does not have the personnel able and/or available to perform the services required under this Agreement.
B. The City desires to contract out for consulting services for certain projects relating to geotechnical services include Engineering Geology, Geotechnical Engineering, Coastal Engineering, and Environmental Health reviews.
C. The Consultant warrants to the City that it has the qualifications, experience and facilities to perform properly and timely the services under this Agreement.
D. The City desires to contract with the Consultant to perform the services as described in Exhibit A of this Agreement.
NOW, THEREFORE, the City and the Consultant agree as follows:
1.0 SCOPE OF THE CONSULTANT’S SERVICES. The Consultant agrees to provide the services and perform the tasks set forth in the Scope of Work, attached to and made part of this Agreement, except that, to the extent that any provision in Exhibit A conflicts with this Agreement, the provisions of this Agreement govern. The Scope of Work may be amended from time to time by way of a written directive from the City.
2.0 TERM OF AGREEMENT. This Agreement will become effective on July 1, 2024, and will remain in effect for a period of two (2) years from said date unless otherwise expressly extended and agreed to by both parties or terminated by either party as provided herein.
3.0 CITY AGENT. The City Manager, or his or her designee, for the purposes of this Agreement, is the agent for the City; whenever approval or authorization is required, Consultant understands that the City Manager, or his or her designee, has the authority to provide that approval or authorization.
4.0 COMPENSATION FOR SERVICES. The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule (Exhibit B). No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee.
Attachment 1
3 Agreement for Professional Services
Cotton, Shires and Associates, Inc.
4.1 The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month.
The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
5.0 CONFLICT OF INTEREST. The Consultant represents that it presently has no interest and shall not acquire any interest, direct or indirect, in any real property located in the City which may be affected by the services to be performed by the Consultant under this Agreement. The Consultant further represents that in performance of this Agreement, no person having any such interest shall be employed by it.
5.1 The Consultant represents that no City employee or official has a material financial interest in the Consultant’s business. During the term of this Agreement and/or as a result of being awarded this contract, the Consultant shall not offer, encourage or accept any financial interest in the Consultant’s business by any City employee or official.
5.2 If a portion of the Consultant’s services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within the City or with a City franchisee, the Consultant warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.
6.0 GENERAL TERMS AND CONDITIONS.
6.1 Termination. Either the City Manager or the Consultant may terminate this Agreement, without cause, by giving the other party ten (10) days written notice of such termination and the effective date thereof.
6.1.1 In the event of such termination, all finished or unfinished documents, reports, photographs, films, charts, data, studies, surveys, drawings, models, maps, or other documentation prepared by or in the possession of the Consultant under this Agreement shall be returned to the City. If the City terminates this Agreement without cause, the Consultant shall prepare and shall be entitled to receive compensation pursuant to a close-out bill for services rendered and fees incurred pursuant to this Agreement through the notice of termination.
If the Consultant terminates this Agreement without cause, the Consultant shall be paid only for those services completed in a manner satisfactory to the City.
6.1.2 If the Consultant or the City fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant or the City violate any of the covenants, agreements, or stipulations of this Agreement, the Consultant or the City shall have the right to terminate this Agreement by giving written notice to the other party of such termination and specifying the effective date of such termination. The Consultant shall be entitled to receive compensation in accordance with the terms of this Agreement for any work satisfactorily completed hereunder. Notwithstanding the foregoing, the Consultants shall not be relieved of liability for damage sustained by virtue of any breach of this Agreement and any payments due under this Agreement may be withheld to off-set anticipated damages. 4 Agreement for Professional Services
Cotton, Shires and Associates, Inc.
6.2 Non-Assignability. The Consultant shall not assign or transfer any interest in this Agreement without the express prior written consent of the City.
6.3 Non-Discrimination. The Consultant shall not discriminate as to race, creed, gender, color, national origin, or sexual orientation in the performance of its services and duties pursuant to this Agreement, and will comply with all applicable laws, ordinances and codes of the Federal, State, County and City governments.
6.4 Insurance. The Consultant shall submit to the City certificates indicating compliance with the following minimum insurance requirements no less than one (1) day prior to beginning of performance under this Agreement. Consultant further agrees to comply with all provisions in the attached Exhibit B which is incorporated herein.
6.5 Indemnification.
To the fullest extent permitted by law, Consultant shall indemnify, defend, and hold harmless City and any and all of its officials, employees, agents, and volunteers (“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, for both indemnity and defense, 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, and the parties cannot mutually agree on Consultant’s percentage of fault, the parties agree to mediation with a neutral third-party 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.
6.6 Compliance with Applicable Law. The Consultant and the City shall comply with all applicable laws, ordinances, and codes of the federal, state, county, and city governments, including, without limitation, Malibu Municipal Code Chapter 5.36 Minimum Wage.
6.7 Independent Contractor. This Agreement is by and between the City and the Consultant and is not intended, and shall not be construed, to create the relationship of agency, servant, employee, partnership, joint venture, or association, as between the City and the Consultant.
6.7.1. The Consultant shall be an independent contractor and shall have no power to incur any debt or obligation for or on behalf of the City. Neither the City nor any of its officers or employees shall have any control over the conduct of the Consultant, or any of the Consultant’s employees, except as herein set forth, and the Consultant expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees are in any manner employees of the City, it being distinctly understood that the Consultant is and shall 5 Agreement for Professional Services
Cotton, Shires and Associates, Inc.
at all times remain to the City a wholly independent contractor and the Consultant's obligations to the City are solely such as are prescribed by this Agreement.
6.8 Copyright. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of the Consultant.
6.9 Legal Construction.
(a) This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed under the laws of the State of California.
(b) This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally in the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(c) The article and section, captions and headings herein have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.
(d) Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular shall refer to and include the plural.
6.10 Counterparts. This Agreement may be executed in counterparts and as so executed shall constitute an agreement which shall be binding upon all parties hereto.
6.11 Final Payment Acceptance Constitutes Release. The acceptance by the Consultant of the final payment made under this Agreement shall operate as and be a release of the City from all claims and liabilities for compensation to the Consultant for anything done, furnished or relating to the Consultant’s work or services. Acceptance of payment shall be any negotiation of the City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by the City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, sub-consultants and agents 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 the City for any defect or error in the work prepared by the Consultant, its employees, sub-consultants and agents.
6.12 Corrections. In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work which may be disclosed during the City’s review of the Consultant’s report or plans. Should the Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by the City, and the cost thereof shall be charged to the Consultant.
6 Agreement for Professional Services
Cotton, Shires and Associates, Inc.
6.13 Files. All files of the Consultant pertaining to the City shall be and remain the property of the City. The Consultant will control the physical location of such files during the term of this Agreement and shall be entitled to retain copies of such files upon termination of this Agreement.
6.14 Waiver; Remedies Cumulative. Failure by a party to insist upon the 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 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.
6.15 Mitigation of Damages. In all such situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
6.16 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.
6.17 Attorneys' Fees. The parties hereto acknowledge and agree that each will bear his/her or its own costs, expenses and attorneys' fees arising out of and/or connected with the negotiation, drafting and execution of the Agreement, and all matters arising out of or connected therewith except that, in the event any action is brought by any party hereto to enforce this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs in addition to all other relief to which that party or those parties may be entitled.
6.18 Entire Agreement. This Agreement constitutes the whole agreement between the City and the Consultant, and neither party has made any representations to the other except as expressly contained herein. Neither party, in executing or performing this Agreement, is relying upon any statement or information not contained in this Agreement. Any changes or modifications to this Agreement must be made in writing appropriately executed by both the City and the Consultant.
6.19 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:
7 Agreement for Professional Services
Cotton, Shires and Associates, Inc.
CITY: Steve McClary CONSULTANT: Michael B. Phipps
City Manager Principal Engineering Geologist
City of Malibu Cotton, Shires and Associates, Inc.
23825 Stuart Ranch Road 699 Hampshire Rd., Suite 102
Malibu, CA 90265-4861 TEL (805) 370-8710
TEL (310) 456-2489 x 226 CEL (805) 807-9001
FAX (310) 456-2760
6.20 Warranty of Authorized Signatories and Acceptance of Facsimile or Electronic Signatures. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign. The Parties agree that this Contract, agreements ancillary to this Contract, and related documents to be entered into in connection with this Contract will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
7.0 GENERAL TERMS AND CONDITIONS. (City and Consultant initials required at EITHER 7.1 or 7.2)
7.1 Disclosure Required. By their respective initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is a “consultant” for the purposes of the California Political Reform Act because Consultant’s duties would require him or her to make one or more of the governmental decisions set forth in Fair Political Practices Commission Regulation 18700.3(a) or otherwise serves in a staff capacity for which disclosure would otherwise be required were Consultant employed by the City. Consultant hereby acknowledges his or her assuming-office, annual, and leaving-office financial reporting obligations under the California Political Reform Act and the City’s Conflict of Interest Code and agrees to comply with those obligations at his or her expense. Prior to consultant commencing services hereunder, the City’s Manager shall prepare and deliver to consultant a memorandum detailing the extent of Consultant’s disclosure obligations in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
7.2 Disclosure not Required. By their initials next to this paragraph, City and Consultant hereby acknowledge that Consultant is not a “consultant” for the purpose of the California Political Reform Act because Consultant’s duties and responsibilities are not within the scope of the definition of consultant in Fair Political Practice Commission Regulation 18700.3(a) and is otherwise not serving in staff capacity in accordance with the City’s Conflict of Interest Code.
City Initials ______
Consultant Initials ______
This Agreement is executed on _____________________, at Malibu, California, and effective as 8 Agreement for Professional Services
Cotton, Shires and Associates, Inc.
of July 1, 2024.
CONSULTANT:
_______________________________
By: MICHAEL B. PHIPPS, Principal Engineering Geologist
Cotton, Shires and Associates, Inc.
CITY OF MALIBU:
___________________________________
STEVE UHRING, Mayor
ATTEST:
___________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM:
___________________________________
TREVOR RUSIN, Interim City Attorney
9 Agreement for Professional Services
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EXHIBIT A
SCOPE OF WORK
1. Review and evaluate engineering geology and geotechnical engineering reports. Reviews shall be performed with reference to the City’s “Guidelines for the Preparation of Engineering Geologic and Geotechnical Engineering Reports & Procedures for Report Submittal”. Provide City staff with specific recommendations regarding the acceptability of such reports and provide detailed review comments to bring the report in compliance with City requirements.
2. Review and evaluate coastal engineering reports. Reviews shall be performed with reference to the City’s “Guidelines for the Preparation of Coastal Engineering Reports”.
Provide City staff with recommendations as to the acceptability of such reports and provide detailed review comments to bring the report in compliance with City requirements.
3. Review and evaluate environmental health project submittals in accordance with City requirements. Provide City staff with recommendations as to the acceptability of such reports and provide detailed review comments to bring the report in compliance with City requirements.
4. Project review services shall be completed utilizing the City’s adopted plan review software (e.g., Bluebeam Studios) to, for example, markup plans with corrections and redlines and/or coordinate with other internal departments.
5. Maintain the City’s Coastal Engineering Guidelines, as appropriate, to maintain conformance with standards of practice and applicable City and State codes and ordinances. This shall be done with each code cycle in addition to City codes and ordinances.
6. Maintain the City’s Geotechnical Guidelines, as appropriate, to maintain conformance with latest state regulations, laws, and acceptable engineering geological and geotechnical engineering practices. This shall be done with each code cycle in addition to City codes and ordinances.
7. Review foundation and grading plans for proposed development projects to ensure compliance with applicable geotechnical recommendations.
8. Review “As-Built” geotechnical engineering and geological reports for adequacy/completeness.
9. Provide field observation and recommendations as to adequacy/completeness during grading or during other geotechnical aspects of construction projects, as requested by the City. Review field testing procedures being implemented by the developer’s geotechnical consultant, as requested by the City.
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10. Perform conformance reviews and plan check of conventional and alternative onsite wastewater treatment systems (a.k.a., private sewage disposal systems). Evaluate land development projects with respect to compatibility with existing onsite wastewater systems’ capacity and layout.
11. Hold routine office hours at City Hall.
12. Provide 24-hour on-call emergency response services as necessary to evaluate existing or pending geological hazards (or damages resulting therefrom) to public or private property, including earthquakes, landslides, mud/debris flows, flooding, fires and any other natural hazards. When requested, provide recommendations to the Building Official regarding the necessity for yellow-tagging or red-tagging structures threatened by geological hazards.
13. Assist City staff in processing excavation permits for geotechnical consultants to perform subsurface exploration on properties in the City as part of the geotechnical investigation.
14. Peer Review of Environmental Site Assessments and Hazardous Materials Issues.
15. Review geological/geotechnical section of various Environmental Impact Reports (EIR) and Specific Plans for adequacy/completeness as requested by the Planning Department.
16. Maintain one (1) individual as the contact for all communication with the City.
17. Furnish assigned personnel with all necessary materials, resources, and training to conduct reviews, including a current copy of applicable City amendments, policies, procedures, and forms.
18. Provide the applicant designee and the City a list of items needing clarification or change to achieve conformance with all State, Federal, and local regulations.
19. Plan approval shall not be recommended to the City until all code compliance issues are resolved to the best of the applicant’s knowledge, and all requirements of the City have been satisfied.
20. Perform services within ten (10) business days upon receipt notification that a review has been authorized.
21. Receive final review and approval by the City on all Code interpretations.
22. Respond within one (1) business day to questions from the City.
23. Attend and participate in local and regional meetings on behalf of the City; including locations other than Consultants office and Malibu City Hall.
24. Calculate/Recalculate appropriate review fees based on the City’s most current fee schedule.
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25. Accept all documents electronically; including utilization of OnBase (records management system), Development Database (permitting software), and any additional electronic formats accepted by the City.
26. Provide training for City staff, including graphic handout materials.
27. Make presentations to City Council, public, and other agencies as requested by City staff. 12 Agreement for Professional Services
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EXHIBIT B
COMPENSATION FOR SERVICES
The City shall pay the Consultant for its professional services rendered and costs incurred pursuant to this Agreement in accordance with the Scope of Work’s fee and cost schedule. No additional compensation shall be paid for any other expenses incurred, unless first approved by the City Manager, or designee.
The Consultant shall submit to the City, by no later than the 10th day of each month, its bill for services itemizing the fees and costs incurred during the previous month. The City shall pay the Consultant all uncontested amounts set forth in the Consultant's bill within 30 days after it is received.
Fixed Fee Services:
Fixed Fees shall include an initial planning review and one response review. Additional reviews will be performed on a time and materials basis.
Service Performed Title Consultant Rate
Peer Review
Geotechnical Review:
Single Family Residence –
Complex
Principal Geotechnical Engineer
Principal Engineering Geologist
Supervising Geotechnical
Engineer
Supervising Engineering
Geologist
Senior Geotechnical Engineer
Senior Engineering Geologist
Staff Engineer
Staff Geologist
Project Coordinator
$3,900
Single Family Residence –
Standard
$2,680
Commercial, Multi-Family,
Guest House, Second Unit
$3,657
Swimming Pool, addition,
remodel, retaining walls,
seawalls, slope repairs
$2,437
Onsite wastewater treatment
systems (OWTS), foundation
repairs
$1,829
Subdivisions, tract maps # of lots x $2,680
Lot line adjustments, buildable
lot created
$2,680 (std.) or $3,900 (complex)
Plan check review $853
Time and materials review $191/hour
As-Built Geotechnical Report
Review
$191/hour
Project Coordination Project Coordinator $95.50/hour
Coastal Engineering Review:
Standard
(NSFR, substantial
improvements, NOWTS) Principal Engineering Geologist
Principal Geotechnical Engineer
Senior Engineer
$1,358
Minor
(unsubstantial improvements,
remodels, additions)
$630
Complex $2,716
Plan Check $630
Time and materials review $191/hour
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Service Performed Title Consultant Rate
Environmental Health Review:
Non-OWTS Review - Simple
Principal Engineer
Staff Geologist/Engineer
Sr. Staff Geologist/Engineer
Principal Geologist
Planning Phase $692
Building Plan Check Phase $346
OWTS Review - Standard
Planning Phase $1,817
Building Plan Check Phase $1,298
OWTS Review – Complex
Commercial
Planning Phase $5,709
Building Plan Check Phase $5,709
OWTS Review - Reduced
Setbacks
$692
OWTS Review – Septic Tank
Replacement or Future Dispersal
Area
$346
Time and materials review $173/hour
Counter Hours:
Geotechnical Supervising Engineering
Geologist
Senior Engineering Geologist
Principal Engineering Geologist
Principal Geotechnical Engineer
$191/hour
Coastal Engineering Principal Engineering Geologist
Principal Geotechnical Engineer $191/hour
Environmental Health Principal Engineer
Staff Geologist/Engineer $173/hour
Professional Services:
Fees for professional services other than peer review and City services are based on an hourly rate.
Service Performed Title Hourly Rate
Engineering Oversight/QA-QC Senior Principal Engineer $280 Geology Oversight/QA-QC Senior Principal Geologist $280 Geotechnical Engineering Lead Principal Engineer $255
Engineering Geology Lead Principal Geologist $255
Geotechnical Investigations
Civil Design/PS&E/Survey
Supervising Geotechnical
Engineer
$220
Geotechnical Support/Analysis Senior Engineer $195
As-needed in-house testing Senior Lab Technician $135
Admin/Project Coordination Project Coordinator ($95.50 or half of geo hourly rate)
Misc. Construction Observation
& Testing (all departments) Senior Field Technician $165 (prevailing wage, straight time)
PW Construction Observation
(Engineer)
Supervising Geotechnical
Engineer
$220
Miscellaneous projects Principal Engineer/Geologist $255 14 Agreement for Professional Services
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Service Performed Title Hourly Rate
Miscellaneous projects Supervising Engineer/Geologist $220 Miscellaneous projects Senior Engineer/Geologist $195
Miscellaneous projects Senior Staff Engineer/Geologist $180 Miscellaneous projects Staff Engineer/Geologist $165
Miscellaneous projects CAD/Tech. Illustrating/Drafting $135 Miscellaneous projects GIS Specialist $195
Env/Haz Waste
Assessment/Remediation
HSE Manager $195
Training Various Staff NO CHARGE
Attend Meetings Various Staff $191
Emergency Response Senior Geologist/Engineer
Principal Geologist/Engineer
Supervising Geologist/ Engineer
$191
Planning Commission Hearing
Attendance
Senior Geologist
Principal Geologist
Principal Geotechnical Engineer
$191
City Council Meeting
Attendance
Consultation to Legal Principal Geologist
Senior Principal Engineer
$255
$280
Judicial Proceedings Principal/Sr. Principal $4,800 / day Expert / Witness Testimony Principal/Sr. Principal $4,800 / day Depositions (Expert Witness) Principal/Sr. Principal $600/ hour Depositions (Percipient Witness) Supervising/Principal $220 / $255 Weekend Work / Overtime N/A N/A
Laboratory Testing and Geophysical Service Charges:
Laboratory testing and geophysical services shall be charged on a time and materials basis. Laboratory samples shall be stored for 60 days after the date of final report submittal unless special arrangements are made for longer storage.
Equipment and Supply:
Rate
Inclinometer System $240 / day
Piezometer Data Acquisition System $125 / day
Drone System $240 / day
Total Station Surveying Equipment $360 / day
GPS/ Reflectorless Surveying Equipment $460 / day
Nuclear Moisture/ Unit Weight Gauge $175 / day
Rope Climbing Safety Equipment $295 / day
Multi-Channel Seismograph or ReMi System $350/ day
All rates listed above shall include overhead costs including, but not limited to salaries, benefits, insurance, office expenses, mileage, and courier service. If staff substitutions are necessary, or if staff is promoted, the original rates listed above will still apply.
Annual Escalation. Standard rates increase per year is limited to the Cost of Living Adjustment (COLA) as adopted in the City’s budget. All subcontractors shall adhere to this limit to rates increase. 15 Agreement for Professional Services
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Non-Billable Administrative Overhead
The Consultant will bill only for time spent performing assigned professional work. All other activities associated with carrying out the contract are not billable and are therefore considered overhead or administrative functions contained within the hourly rate. Typical examples of nonbillable overhead activities are:
• Discussion with staff or applicant about the cost of services or to address billing disputes. • Meetings to discuss work performance, contract, or additional services. • Travel time to and from the City of Malibu.
• Preparation of invoices and other administrative clerical services. • Contract administration, such as preparing or discussing contract amendments. • Time spent resolving errors in the event the Consultant is responsible. 16 Agreement for Professional Services
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EXHIBIT C
INSURANCE LANGUAGE
Without limiting Consultant’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.
General Liability Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident.
Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain 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 and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
Workers’ Compensation Insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
OTHER PROVISIONS OR REQUIREMENTS
Proof of Insurance. Consultant shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of Coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the 17 Agreement for Professional Services
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performance of the Work hereunder by Consultant, their agents, representatives, employees, or subconsultants.
Primary/Noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.
City’s Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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. In the alternative, City may cancel this Agreement.
Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Contract Provisions (Non Estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
18 Agreement for Professional Services
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Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the City immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
Additional Insured Status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
Prohibition Of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests’ provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the City, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor. Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to City for review.
City’s Right to Revise Specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days’ advance written notice of such change. If such a change results in substantial additional costs to the Consultant, the City and Consultant may renegotiate the Consultant’s compensation.
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Self-Insured Retentions. Any self-insured retentions must be declared to and approved by the City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Timely Notice Of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
Additional Insurance. The consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
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Agenda Item # 3.B.11
Council Agenda Report
To: Mayor Uhring and Honorable Members of the City Council Prepared by: Tracey Rossine, Environmental Programs Manager Reviewed by: Yolanda Bundy, Environmental Sustainability Director
Approved by: Steve McClary, City Manager
Date prepared: May 8, 2024 Meeting date: May 28, 2024
Subject: California State Senate Bill (SB) 379: Online Solar Permitting Platform for Residential Projects
RECOMMENDED ACTION: 1) Authorize the Mayor to execute a professional services agreement with Symbium Corporation in the amount of $30,000 to prepare an online, automated solar permitting platform for residential projects.
FISCAL IMPACT: No additional appropriation is required. Funding for this project was included in the Adopted Budget for FY 2023-24 and Proposed Budget for FY 2024-25 in Account No. 101-2004-5100-00 (Building Safety Professional Services).
STRATEGIC PRIORITY: This item supports day-to-day operations identified in the Strategic Priority Project List.
DISCUSSION: In 2021, the California Energy Commission (CEC) set aside $20 million for grants to all jurisdictions that adopt a residential solar permitting system in accordance with Senate Bill (SB) 379. The proposed funding allocation is awarded on a sliding scale based on a city’s population size. For the City of Malibu, the maximum grant award is $40,000 based on a population range of less than 50,000 residents.
Staff applied for the California Automated Permit Processing (CalAPP) Grant Funding Opportunity and received an official Grant Agreement from the California Energy Commission in June 2023 in the amount of $40,000. The City intends to use the funds to establish an automated permitting platform that verifies code compliance and issues permits in real time for certain types of residential solar projects.
City Council Meeting
05-28-24
Item
3.B.11
Agenda Item # 3.B.11
SB 379 requires most California cities and counties to implement an online, automated permitting platform that verifies code compliance and issues permits in real time or allows the city, county, or city and county to issue permits in real time for a residential solar energy system, as defined, that is no larger than 38.4 kilowatts alternating current nameplate rating and a residential energy storage system, as defined, paired with a residential solar energy system that is no larger than 38.4 kilowatts alternating current nameplate rating.
As a population of 50,000 or fewer, the City of Malibu is required to complete these requirements by September 30, 2024.
Per SB 379, the City must report to the California Energy Commission when it is in compliance with this legislation and report annually to the Energy Commission within one year of implementing the online solar permitting platform. This annual reporting requirement will become inoperative on June 30, 2034.
Due to the urgency of this matter, the City solicited the assistance of Symbium Corporation (Symbium) to prepare the permitting platform. This decision was based on Symbium‘s success in assisting other jurisdictions in streamlining permitting for SB 379 compliance and express permits, including the cites of Ventura, Vacaville, Santa Clarita, and Lancaster. Symbium is the sole provider of a public-facing Citizen’s Dashboard experience that provides rich data visualizations of properties and enables instant legal analysis and approvals of residential solar in addition to hundreds of no-plan permit types against the applicable code requirements.
The only other service that performs these types of compliance checks to enable SB 379- compliant permit issuance in real time is SolarAPP+. The following table provides an analysis of the closest available tools for instant permit issuance.
Sole Source Justification Symbium SolarAPP+ OpenCounter Camino Public-facing permitting interface
SB379-compliant functionality
$0 ongoing cost to jurisdiction partners
(convenience fee charged to applicant)
Integration into existing online permitting systems,
given an API
Ability to accommodate customization and configuration requests to align with AHJ partner’s
specific needs (I.e. line diagram uploads etc.)
Swift configuration and integration possible in 3-6
weeks, performed entirely by the vendor
Visualization of 3D buildable envelopes
Instant regulatory analysis, list of permits, and
permit issuance for all no-plan permits (I.e. heat pumps, EV charging etc.)
Automated verification of contractor licenses
against CSLB and local requirements
Instantly surface detailed code requirements and
compliance as the project is scoped by the applicant
Identification of applicable rebates (IRA or
otherwise) for a given project scope
Agenda Item # 3.B.11
Pursuant to Malibu Municipal Code Section 2.56.130 (Competitive Bidding – Exceptions), the City did not solicit a Request for Proposals for services pursuant to subsections (B)(3) and (B)(4). Further, pursuant to 2.56.130 (B)(4), the use of a competitive bidding process would cause unnecessary delay or expense and not likely to result in a lower price from a responsible bidder who can provide the specialized services needed.
Symbium has provided a scope of work and cost proposal to complete the project. The firm charges a one-time configuration and integration fee of $30,000 for jurisdictions with a population under 100,000 which falls entirely within the category of CalAPP grant reimbursable costs. There are no annual or ongoing fees for the City.
SUMMARY: Staff recommends authorizing an agreement with Symbium Corporation to prepare an online, automated solar permitting platform for residential projects. The CalAPP Program provides grant funding to establish this online platform.
ATTACHMENTS:
1. CalAPP Grant Agreement from the California Energy Commission
2. Professional Services Agreement with Symbium Corporation
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SYMBIUM MASTER LICENSING AGREEMENT
This Master Licensing Agreement (the “Agreement”) is by and between Symbium Corp., with business offices located at 912 Cole St., #375 San Francisco, CA 94117, (“Symbium”), and the City of Malibu with business offices located at 23825 Stuart Ranch Road, Malibu, California, (the “Licensee”). This Agreement shall be effective on the last signature date provided on the signature block hereto (“Effective Date”). Each of Symbium and Licensee is a “Party” and together they are the “Parties”.
WHEREAS, Symbium has developed and maintains a range of cloud-based software-as-a-service (“SaaS”) solutions to streamline certain planning, zoning, building, permitting, or other government-facing and constituent-facing processes.
Symbium provides Services under the trade names identified in an applicable Order and as described on Symbium’s Site.
WHEREAS, Symbium agrees to provide Services to Licensee pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
In addition to the capitalized terms defined throughout this Agreement, the following terms when used herein shall have the respective meanings assigned to them below:
1.1. “Affiliate”, with respect to either Party, shall mean any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group, that directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Party. Any references to Licensee herein shall also include reference to Licensee Affiliates.
1.2. “API” shall mean application programming interface, which shall enable Symbium to either read from and/or write into a third-party application.
1.3. “End-User” shall mean any individual who is authorized to use the Services.
1.4. “Licensee Data” shall mean any data, excluding Symbium Data, that is collected, used, maintained, processed, stored, or generated exclusively by or on behalf of Licensee.
1.5. “Licensee Services” shall mean Licensee’s open data services, GIS services, and APIs with which the Solutions communicate in order to correctly perform the intended functionality.
1.6. “Order” shall mean either: (i) any specific sales quotations or orders as agreed to in writing and signed by the Parties from time to time; or (ii) as set forth in the applicable Symbium payment summary screen. Each Order is hereby incorporated by reference into this Agreement as Exhibit “A” and shall be numbered sequentially as Exhibit A-1; A-2; A3 and so on. If there are any inconsistencies or conflicts between this Agreement and an Order, the inconsistent or conflicting terms of the Order shall govern.
1.7. “Professional Services” shall mean any live support, consulting, training, or development services or other services as specifically described and priced in the applicable Order.
1.8. “Service Description” shall mean any description of Symbium’s Services that are advertised on Symbium’s Site or in the applicable Order, Symbium’s knowledge base, applicable operator and user manuals or guides, designs, technical reference manuals, flow diagrams, file descriptions, Service descriptions found on the Symbium site, and any other written materials pertaining to the use of the Solutions.
1.9. “Services” shall mean the Solutions and the Site, which are provided to Licensee by Symbium pursuant to the terms of this Agreement.
1.10. “Site” shall mean the Symbium website, located at www.symbium.com.
Attachment 1
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1.11. “Solutions” shall mean the cloud-based SaaS web applications, which are identified in the applicable Order, along with all associated updates.
1.12. “Solution Updates” shall mean any Solution-specific version updates that are deployed to ensure the functionality of the Solutions in accordance with the Services Descriptions. Solution Updates shall exclude additional or new Solutions, even if such additional or new Solutions contain similar functionality as other Solutions.
1.13. “Support” shall mean the email support services provided by Symbium to Licensee during the Term.
1.14. “Symbium Data” shall mean any electronic data and publicly accessible or available data and shall include all computable laws and regulations that are embedded in the Solutions but shall exclude Licensee Data.
1.15. “Symbium Integrations” shall mean any additional SaaS solutions that Symbium develops and deploys, which may be integrated into or linked from the Solutions.
1.16. “Third-Party Services” shall mean any third-party products or services, including but not limited to, software or materials incorporated into or provided as part of the Solutions or software that Symbium integrates into via an available API.
1.17. “Transaction Services” shall mean the public-facing permitting and incentives Services offered by Symbium.
2. SERVICES
2.1. Orders. Symbium shall provide the Services in accordance with the applicable Order.
2.2. Changes. No change to the Order shall be implemented unless it has been approved in writing signed by an authorized representative of each Party (each, a “Change Order Amendment”). Upon Licensee’s and Symbium’s execution of the Change Order Amendment, the Change Order Amendment shall be incorporated into and become part of the applicable Order.
3. LICENSE
3.1. License Grant. Subject to the terms and conditions of this Agreement, Symbium hereby grants Licensee a nonexclusive, nontransferable, worldwide license (“License”) during the Term to access and use the Solutions. Symbium reserves all rights not expressly granted to Licensee. The License granted to Licensee pursuant to this Agreement will permit use of the Solutions that are set forth in the Order. Any Licensee Affiliate may also add additional Services under this Agreement via a new Order. LICENSEE SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY LICENSEE AFFILIATE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
3.2. Usage Restrictions. Except as permitted by this Agreement, the Solutions may not be decompiled, reverse engineered, disassembled, transferred, distributed in an unauthorized manner, resold, sublicensed, or used to create any derivative works. Licensees may not use any software (including network monitoring or discovery software) to determine the Site’s or Service’s architecture, or extract information about usage or individual identities of users. Licensee may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Services or any parts thereof. Except as expressly permitted in this Agreement, Licensee may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Services in any way; (ii) modify or make derivative works based upon the Services; (iii) "frame" or "mirror" any Solutions on any other server or wireless or Internet-based device. Licensee may use the Solutions only for its intended purposes and shall not: (i) send spam or otherwise excessive, duplicative, or unsolicited messages; (ii) send, store, or transmit any infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) attempt to gain unauthorized access to the Services or its related systems or networks; or (vi) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit.
3.3. Third-Party Services. In the event that Symbium agrees to certain integrations to Third-Party Services, Licensee shall secure the necessary permissions, when applicable, for Symbium to perform its mutually agreed-upon tasks.
Symbium is not responsible for any modification, loss, usage, disclosure, transmission, or deletion of any Licensee Data resulting from its access to a Third-Party Service or any outputs generated by the Solutions for uploading into Third-Party
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Services. Licensee shall be responsible for all third-party costs resulting from its requested integrations with any ThirdParty Service. In the event that Licensee wishes to use a Symbium-developed API, Symbium cannot warrant or guarantee that a Third-Party Service will continue to make access available to Symbium via such API.
4. PROFESSIONAL SERVICES
4.1. Professional Services. As mutually agreed by the Parties, and in conjunction with the Services, Symbium may perform certain Professional Services, which may include certain implementation, training, or other expert services.
Such Professional Services shall be provided for a separate fee, which will be specified in an applicable Order in accordance with the terms and conditions of this Agreement. Such Professional Services shall be provided in a manner that is consistent with applicable industry standards, and if such standards are not met (with a reasonable opportunity to cure following written notice from Licensee), Licensee’s sole remedy shall be the re-performance of such Professional Services.
5. SUPPORT
5.1. Support. Symbium will provide Support during the Term of this Agreement as set forth in the Order. Any Support requests should be directed to the following: [email protected].
6. LICENSEE OBLIGATIONS FOR CONFIGURED OR IMPLEMENTED SERVICES Where Symbium is configuring or implementing Services for Licensee, the following shall apply:
6.1. Designation of Licensee Project Manager. Licensee shall designate a project manager who shall be accessible by email throughout the Term of the Agreement and shall provide reasonably prompt responses to Symbium’s requests and communications.
6.2. Testing Period and Feedback. Licensee will be provided with an opportunity to provide feedback and request functional changes to the Solutions prior to public launch. Symbium shall also perform any requested bug fixes during this period and on an ongoing basis.
6.3. Hosting Link to Solutions. Upon the public launch of any public-facing Solutions that are configured or implemented for Licensee, Licensee shall place a prominent link and dedicated landing page to such Solutions on its public-facing website at the location where End-Users would normally visit for information on related services. This link and landing page shall be maintained by Licensee during the Term of the Agreement with support from Symbium.
6.4. Notification of Changes. Where Solutions are configured using laws or regulations provided by Licensee, Licensee shall cooperate with Symbium to help identify the publicly accessible online publications of those regulations and Symbium shall then establish a protocol to ensure timely notifications of changes to the regulations underlying the applicable Solutions and the data provided by the applicable Third-Party Services. In the absence of publicly accessible regulations that are published online, Licensee shall notify Symbium in writing (email is sufficient) of such changes.
7. PROPRIETARY RIGHTS
7.1. Symbium Properties. The Services and any underlying platform technology (“Symbium IP”) are owned or licensed by Symbium and protected by U.S. and international copyright, trademark, service mark, trade secret, patent and/or other proprietary rights and laws. All Solutions shall be hosted on Symbium’s designated servers at all times and Symbium will retain control over all user experience or user interface design of Solutions. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Licensee any license or right under copyright or other intellectual property right law. No part of the Symbium IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Licensee shall not take any action that shall interfere with or diminish Symbium’s right in any of the Symbium IP. Symbium shall retain ownership and title of any Solutions that it creates, even if created on a custom basis for Licensee.
7.2. Licensee Data and Symbium Data. As between Symbium and Licensee, Licensee shall, at all times, own or obtain the appropriate permissions to use the Licensee Data and shall be responsible for the accuracy and adequacy of any and all Licensee Data as well as establishing any required legal terms and conditions prior to the use of any Licensee
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Data. Licensee shall obtain all prior consents, internally or from relevant third parties, prior to uploading and using any Licensee Data to the Solutions. Licensee grants to Symbium a non-exclusive, royalty-free, worldwide license during the Term to access and use the Licensee Data for the purpose of delivering the Services, which may include the aggregation of such data in an anonymized manner for benchmarking and other purposes. Symbium’s right to use Symbium Data shall be governed by its own policies, including its Privacy Policy, available at https://symbium.com/privacy (“Privacy Policy”).
7.3. Symbium Integrations. Nothing shall prevent Symbium from developing and deploying Symbium Integrations, which Symbium may do at any time in its sole discretion. Symbium Integrations shall not diminish or degrade the functionality of the Solutions in the applicable Order at any time.
7.4. License to Use Feedback. Licensee grants to Symbium an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into the Services any feedback, suggestions, requests, or recommendations relating to the Services.
7.5. Usage Data. Licensee grants to Symbium an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into its own support offering, product development, operational plans, and sales or marketing materials, any anonymous usage data acquired from Licensee’s account and use of the Solutions.
7.6. References to Licensee / Press Release. Upon execution of this Agreement, Symbium may make references to Licensee and Licensee’s URL and may use Licensee’s designated trademark and logo for the limited purpose of publishing it on Symbium’s current list of Licensees located on the Symbium Site. Symbium may also respond to any inquiry regarding whether Licensee is a licensee and user of the Services. Additionally, upon execution of this Agreement, each Party may issue a press release announcing the Parties’ relationship under this Agreement.
8. FEES AND PAYMENTS
8.1. Fees. Symbium shall charge either Licensee or End-Users, as applicable, for the Services provided by Symbium hereunder as specified in the applicable Order.
8.2. Payment Methods. Symbium accepts payments for its Services from Licensee via check or electronic funds transfer and will cooperate, in good faith, to accommodate Licensee’s preference in either case. Payments for Transaction Services by End-Users shall be made by credit card.
8.3. Payment Terms. All pricing and payments are and shall be in U.S. dollars.
8.3.1. With respect to fees charged to Licensee, Licensee shall pay each invoice as stated in the Order or, if no due date is stated, within 30 days of receipt unless it has a bona fide dispute with respect to payment of such invoice or portion thereof. If there is a bona fide dispute regarding any invoice rendered or amount paid, the disputing Party shall notify the other by written notice thereof, and the Parties shall use their best efforts to resolve such dispute expeditiously. If an aggrieved Party notifies the other in writing of a disputed invoice or payment, and there is a good faith basis for such dispute, the time for paying the portion of the invoice in dispute shall be extended by a period of time equal to the time between receipt of such notice and the resolution of such dispute. Undisputed portions of any invoice shall be paid as stated above.
8.3.2. Symbium’s fees to End-Users for Transaction Services shall be inclusive of Symbium’s Service fees (E.g., a per-permit fee), as stated in the applicable Order, in addition to all fees that would otherwise be payable directly to Licensee by End-User (E.g., government fees).
8.4. Payment Processing Fees. Fees charged to End-Users for Symbium’s Transaction Services are nonrefundable. As between Symbium and Licensee, Symbium shall assume any credit card fees charged by Symbium’s thirdparty payment processors for Transaction Services that are processed on Symbium. As applicable, Symbium may pass through to End-Users any credit card processing fees charged by either of Symbium’s or Licensee’s payment processor (I.e., in cases where the Licensee charges $100 + $5 credit card processing fee for a total of $105, Symbium may pass through the $5 additional Licensee processing fee directly to the End-User.).
8.5. Taxes. Licensee shall be financially responsible for all sales or services taxes that are assessed on the provision of the Services to Licensee, excluding any withholding or export taxes or taxes based upon Symbium’s income.
To the extent Symbium is required to collect such taxes under applicable Law, Symbium, to the extent legally or otherwise required, shall separately state the amount of tax due on its invoices to Licensee. Licensee and Symbium shall cooperate to segregate the fees into: (i) those for taxable Services and (ii) those for nontaxable Services. The Parties shall reasonably cooperate with each other to more accurately determine each Party’s tax liability and to minimize such liability, to the
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extent legally permissible. In addition, Symbium shall provide and make available to Licensee any information regarding the computation of any such taxes as reasonably requested by Licensee. Symbium shall not pay any taxes based on the Services that Licensee and Symbium disagree on as to whether a tax is due without affording Licensee a reasonable amount of time after being called upon by the taxing authority to pay such tax to dispute the payment of such tax, at Licensee’s expense, in the appropriate legal forum.
9. CONFIDENTIALITY
9.1. Confidentiality. Except as set forth in Sections 9.2 and 9.3, as applicable, Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information as defined herein. “Confidential Information” means all information concerning a Party’s business not generally known to the public, whether or not marked as confidential. By way of illustration only, Confidential Information may include Licensee Data, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party. In maintaining the confidentiality of the other Party’s Confidential Information, each Party shall use at least the same standard that Party uses for its own confidential information of similar type, and shall take necessary precautions not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement. Each Party’s officers, employees, and subcontractors shall be bound by the terms of this Section or a similar written agreement with terms no less protective of either Party’s Confidential Information than this Agreement. Each Party acknowledges that any actual or threatened violation of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing Party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity. Nothing in this Section shall prohibit Symbium from disseminating aggregated information that contains no Confidential Information of Licensee.
9.2. Public Agency Exceptions and CPRA. This Section 9.2 shall apply to any Licensee that is a public agency subject to the disclosure requirements of the California Public Records Act (“CPRA”) or substantially similar requirements (the “Public Agency Exceptions”). Notwithstanding any other obligations set forth in Section 9, Licensee is not obligated to act in any way that is contrary to any requirements under the CPRA or Public Agency Exceptions. Symbium shall identify information that is protected under the CPRA or Public Agency Exceptions and shall clearly mark such information as “CONFIDENTIAL AND PROPRIETARY”, including identification of the specific lines containing such confidential and proprietary information subject to nondisclosure. In the event of a request for such information, Licensee will attempt, in good faith, but is not required, to provide written notice to Symbium prior to such disclosure. For information that Symbium wishes to protect from public disclosure, Symbium must obtain a protective order, injunctive relief or other appropriate remedy from a court of law in either San Francisco County or the Licensee’s County before the Licensee is required to respond to the CPRA request. If Symbium fails to obtain such remedy within the time the Licensee is required to respond to the CPRA or Public Agency Exceptions request, Licensee may disclose the requested information.
9.3. Cooperation. In the event of any unauthorized use or disclosure or loss of any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense: (i) notify the disclosing Party in writing; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the violation or the damage resulting therefrom; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
9.4. Limitation. Notwithstanding the provisions of this Section, Symbium may disclose Licensee’s Confidential Information, which includes personally identifying information and End-user activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that Symbium shall comply with any applicable protective order or equivalent and, unless prohibited by law, Symbium will employ commercially reasonable efforts to provide Licensee with prior written notice, so that Licensee has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Licensee for that purpose.
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10. REPRESENTATIONS AND WARRANTIES
10.1. Power and Authorization. Each Party hereby represents, warrants, and covenants to the other Party that (i) it is duly organized, validly existing and in good standing under the Laws of the state of its domicile and is in good standing in each other jurisdiction in which such qualification is required by Law; (ii) it has power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform the obligations under this Agreement, and (iii) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound.
10.2. Compliance with Law. Each Party hereby represents, warrants, and covenants to the other Party that in performing its obligations and exercising its rights under this Agreement, it will comply (and shall require all of its personnel providing Services hereunder to comply) with all applicable Laws.
10.3. By Licensee. Licensee hereby represents, warrants, and covenants to Symbium that: (i) it has obtained all the appropriate consents required by law to ensure that Licensee and Symbium have the right to use the Licensee Data in association with the Services and, if applicable, as described in Symbium’s Privacy Policy; and (ii) it will not use the Service to collect, upload, retrieve, transmit, send, and/or store any sensitive personally identifiable information in violation of any applicable laws. Symbium reserves the right to delete any Licensee Data that is in violation of any terms in this Agreement or of any applicable laws.
10.4. Disclaimer of Additional Warranties. SYMBIUM MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT FUTURE PRODUCT FEATURES .
11. INDEMNITIES
11.1. General Indemnities. Each Party (“Indemnifying Party”) shall defend, indemnify and hold the other Party (“Indemnified Party”) and its Affiliates and their respective officers, directors, employees, agents, contractors, successors, and assigns harmless from and against any and all damages, losses, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from or in connection with any actual judicial causes of actions by third parties (each a “Claim”) to the extent such Claim is based on or arises from or relates to (i) any breach or default of any provision of this Agreement by the Indemnifying Party; or (ii) negligent or intentional acts or omissions caused by the Indemnifying Party or its Affiliates and their respective officers, directors, employees, agents, contractors, successors and assigns. Indemnification Procedure. Each Indemnified Party shall provide the Indemnifying Party with prompt written Notice of any Claim for which the Indemnified Party is seeking or may seek indemnification hereunder (provided that the failure of the Indemnified Party to promptly notify the indemnifying Party hereunder shall not relieve the Indemnifying Party of any liability with respect to the Claim, except to the extent the Indemnifying Party demonstrates that the defense of the Claim is prejudiced by such failure). The Indemnified Party shall provide reasonable cooperation (at the Indemnifying Party’s expense) and retain full authority to defend or settle the Claim. The Indemnifying Party shall keep the Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any such Claim. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. The Indemnifying Party shall not have the right to settle any Claim if such settlement arises from or is part of any criminal action or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party without the prior written consent of such Indemnified Party.
12. LIMITATION OF LIABILITY
12.1. THE LIABILITY OF SYMBIUM AND LICENSEE TO EACH OTHER FOR ANY AND ALL
CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT,
NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH
OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AVERAGE MONTHLY FEES CONVERTED TO AN ANNUALIZED BASIS. LICENSEE ACKNOWLEDGES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.1
IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL
LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SYMBIUM WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. SYMBIUM HAS RELIED ON
THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE LICENSEE WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PURSUANT TO THIS AGREEMENT.
12.2. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM
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LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN
CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3. NOTWITHSTANDING THE FOREGOING, SECTION 12.1 AND SECTION 12.2 WILL NOT APPLY TO: (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS; (II) BREACH OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY; (III) ANY THIRD PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT; OR (IV) THE BREACH BY EITHER PARTY OF THEIR REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10.
13. COOPERATION
13.1. Cooperation. Each Party shall inform the other Party of any legal claims, demands or complaints brought:
(i) by a third party relating to the Services or products provided by Symbium to Licensee under this Agreement; or (ii) to any regulatory body relating to this Agreement or anything acquired hereunder. The Parties shall cooperate with each other with respect to the resolution of such complaints. For the avoidance of doubt, the Party against whom the complaint was made shall control the response to any regulatory body, if any, with respect to any such complaint.
14. TERM AND TERMINATION
14.1. Term. The initial term of this Agreement shall be as set forth in the applicable Order (“Initial Term”) and shall thereafter be renewed by the Parties for recurring one (1) year periods (“Subsequent Term”) unless either Party provides the other Party with termination or intention not to renew prior to the commencement of the next annual period.
The Initial Term and Subsequent Term may collectively be referred to as the “Term”.
14.2. Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party if such other Party commits a material breach of this Agreement and does not cure such breach within fifteen (15) days following its receipt of notice thereof from the terminating Party. No refunds shall be issued to Licensee in the event of termination under this Section 14.2 by Symbium for an uncured material breach by Licensee. Symbium shall issue a prorated refund of prepaid but unused fees to Licensee in the event that Licensee terminates this Agreement under this Section 14.2 for an uncured material breach by Symbium. “Material breaches” include: (i) failure by Symbium to deliver the Services as agreed under this Agreement; (ii) any breach of Section 7 (Proprietary Information); (iii) any failure by Licensee to pay fees when due; (iii) or any breaches by either Party of Sections 3 (License), 9 (Confidentiality), 10 (Representations and Warranties), 11 (Indemnities), or 13 (Cooperation). Any termination of this Agreement will automatically terminate any incorporated Orders.
14.3. Suspension of Services. Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Symbium’s Site or in connection with Symbium’s Services may result in immediate suspension of access to certain Solutions or termination of this Agreement with no refund and without limitation of any other available legal remedies. Symbium may suspend Licensee’s access to any Services until all overdue payments are paid in full.
Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Licensee will continue to be charged for the remainder of the term for any delinquent accounts. Licensee acknowledges and agrees that, unless otherwise required in this Agreement, Symbium has no obligation to retain any data on behalf of Licensee and that such data, if any, may be irretrievably deleted upon termination of this Agreement.
14.4. Remedies Not Limiting. The remedies provided in this Section 14 are in no way limiting of one another or of any other rights and remedies granted to either Party under this Agreement. Symbium may choose to, but is not required to, place Licensee’s account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.
15. MISCELLANEOUS
15.1. Notices. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either sent by trackable courier or email to the recipients listed in the Order. Notices by courier shall be effective upon proof of delivery by either Party. Email notices shall be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change in the same manner required in this Section 15.1.
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15.2. Assignment; Binding Effect. Neither Party shall assign or transfer this Agreement nor delegate any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, upon written notice to Licensee, Symbium may assign this Agreement to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets.
Any assignment, transfer or delegation of rights or obligations hereunder in contravention of this Section shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties to this Agreement and their respective successors and permitted assigns.
15.3. Dispute Resolution; Equitable Relief. The Parties agree that, in the event of a dispute or alleged breach, they shall first work together in good faith to resolve the matter internally through negotiations and, if necessary, by escalating it to higher levels of management. The foregoing shall not apply to, and shall not prevent a Party from seeking immediate relief in the event of, disputes involving the confidentiality or data protection provisions of this Agreement or infringement of intellectual property rights (in which case either Party shall be free to seek available remedies in a court of competent jurisdiction in accordance with the Governing Law Section of this Agreement).
15.4. Entire Agreement; Amendment. This Agreement sets forth the entire understanding between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous representations, discussion, negotiations, letters, proposals agreements and understandings between the Parties hereto with respect to the subject matter hereof, whether written or oral. This Agreement may be amended, modified or supplemented only in a writing duly executed by an authorized representative of each of Licensee and Symbium.
15.5. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. For any disputes that are not resolved by way of good faith negotiations and settlement, the Parties hereby consent to the exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts of Los Angeles , County of Los Angeles , California.
15.6. Headings. The section headings in this Agreement are for reference and convenience only and do not explain, modify, interpret, or expand the provisions of this Agreement.
15.7. Independent Contractors. In making and performing under this Agreement, the Parties are acting and shall act as independent contractors and not that of master and servant or partnership. Neither Party is, nor will be deemed to be, an agent, legal representative, joint venture, or partner of the other Party for any purpose. Neither Party shall have any authority to act for or to bind the other Party in any respect, nor shall either Party hold itself out as having such authority.
Each Party agrees to assume complete responsibility for its own employees with regard to federal or state employer’s liability, worker’s compensation, social security, unemployment insurance, and Occupational Safety and Health Administration requirements, and other laws.
15.8. Severability. If any of the provisions of this Agreement are declared to be invalid or unenforceable by a court of competent jurisdiction, such provisions shall be ineffective to the extent of such invalidity or unenforceability while the other provisions hereof shall remain in full force and effect.
15.9. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed on behalf of the Party against whom it is asserted. Any consent by any Party to, or waiver of, a breach of the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any continuing, different, or subsequent breach of this Agreement by such Party.
15.10. Survival. The provisions of this Agreement, which by their nature survive expiration or termination of this Agreement, shall survive, including, but not limited to the following Sections: 7 (Proprietary Rights), 9 (Confidentiality), 10 (Representations and Warranties), 11 (Indemnities), and 12 (Limitation of Liability).
15.11. Controlling Document. Notwithstanding any inconsistent or additional terms and conditions which may be contained in a purchase order, invoice, voucher or other similar document issued by either Party, such document shall be for issuing Party’s internal purposes only and the terms and conditions of this Agreement shall prevail. Therefore, even if such document is acknowledged or accepted by the receiving Party and regardless of any statement to the contrary which may be contained therein, the inconsistent or additional terms and conditions of such purchase order, invoice, voucher or other similar document shall have no force or effect on this Agreement.
15.12. Interpretation; Construction. Unless the context of this Agreement clearly requires otherwise, (i) references to the plural include the singular, the singular the plural, the part the whole, (ii) references to any gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive
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meaning frequently identified with the phrase “but not limited to,” and (v) references to “hereunder” or “herein” relate to this Agreement. The Parties agree that this Agreement is the result of careful negotiations between sophisticated Parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
15.13. Signature/Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both of which, taken together, shall constitute one agreement binding on both Parties. A facsimile signature or electronic signature (or e-signature) shall have the force and effect of an original signature, and in the absence of an original signature, shall constitute the original signature.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THE AGREEMENT, UNDERSTAND IT AND AGREE
TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING ON BEHALF OF EACH HAS BEEN AUTHORIZED TO DO SO. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
SYMBIUM CORP. CITY OF MALIBU
By: By:
Name: Leila Banijamali Name: Steve Uhring
Title: CEO Title: Mayor
Email: [email protected] Email: [email protected]
Date: Date:
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EXHIBIT A-1 – ORDER
This Order, once executed, is governed by the Symbium Master Licensing Agreement between Symbium Corp. (“Symbium”) and the City of Malibu (“Licensee”) (the “Agreement”). All fees set forth herein are due pursuant to the terms of the Agreement. All capitalized terms used but not defined herein will have the meaning assigned to them in the Agreement. This Order shall control in the event of any conflict between this Order and the Agreement.
Prepared For:
City of Malibu
Order No.:
MALIBU-001
Make Payment to:
Symbium Corp.
City of Malibu
Yolanda Bundy, ESD Director/ Building
Official
Building Safety
23825 Stuart Ranch Road
Malibu, CA 90265
[email protected]
Initial Term:
2 years
Symbium Corp.
912 Cole St., #375
San Francisco, CA 94117
[email protected] Payment Frequency:
N/A
SaaS Solution / Service Description Billing
Symbium’s Citizen’s Dashboard for
SB379 Compliance
● Web-based public-facing automated plan review
for solar energy systems as required by SB379
● $25 Symbium service fee per permit or revision,
charged to applicants at point of sale.
$0 as part of Symbium
SB379 Pilot Program.
Symbium Express Permits ● Web-based public-facing automated plan review for additional electrification and no-plan
permits, as requested by Licensee.
● $25 Symbium service fee per permit or revision,
charged to applicants at point of sale.
$0 as part of Symbium
Express Pilot Program.
Included Integrations Read-write integrations into existing permit tracking system (PTS), given available APIs.
$30,000 (CalAPP funds)
Ongoing Support and Maintenance Quarterly updates $0
Total $0
Additional Terms and Conditions:
1. Unless noted otherwise, the pricing above includes initial implementation and training to ensure proper use and shall be invoiced upon execution of the Agreement.
2. Symbium shall be the exclusive provider of the Services for Licensee during the Term.
3. Any additional Solutions or Services requested by Licensee that exceed the scope of this Order shall be subject to a separate signed Order between the Parties.
4. Support is available by email: [email protected].
ACCEPTED AND AGREED BY:
Symbium Corp. City of Malibu
BY: DATE: BY: DATE:
NAME: Leila Banijamali NAME: Steve Uhring
TITLE: CEO TITLE: Mayor
EMAIL: [email protected] EMAIL: [email protected]
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SYMBIUM MASTER LICENSING AGREEMENT
This Master Licensing Agreement (the “Agreement”) is by and between Symbium Corp., with business offices located at 912 Cole St., #375 San Francisco, CA 94117, (“Symbium”), and the City of Malibu with business offices located at 23825 Stuart Ranch Road, Malibu, California, (the “Licensee”). This Agreement shall be effective on the last signature date provided on the signature block hereto (“Effective Date”). Each of Symbium and Licensee is a “Party” and together they are the “Parties”.
WHEREAS, Symbium has developed and maintains a range of cloud-based software-as-a-service (“SaaS”) solutions to streamline certain planning, zoning, building, permitting, or other government-facing and constituent-facing processes.
Symbium provides Services under the trade names identified in an applicable Order and as described on Symbium’s Site.
WHEREAS, Symbium agrees to provide Services to Licensee pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
In addition to the capitalized terms defined throughout this Agreement, the following terms when used herein shall have the respective meanings assigned to them below:
1.1. “Affiliate”, with respect to either Party, shall mean any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group, that directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Party. Any references to Licensee herein shall also include reference to Licensee Affiliates.
1.2. “API” shall mean application programming interface, which shall enable Symbium to either read from and/or write into a third-party application.
1.3. “End-User” shall mean any individual who is authorized to use the Services.
1.4. “Licensee Data” shall mean any data, excluding Symbium Data, that is collected, used, maintained, processed, stored, or generated exclusively by or on behalf of Licensee.
1.5. “Licensee Services” shall mean Licensee’s open data services, GIS services, and APIs with which the Solutions communicate in order to correctly perform the intended functionality.
1.6. “Order” shall mean either: (i) any specific sales quotations or orders as agreed to in writing and signed by the Parties from time to time; or (ii) as set forth in the applicable Symbium payment summary screen. Each Order is hereby incorporated by reference into this Agreement as Exhibit “A” and shall be numbered sequentially as Exhibit A-1; A-2; A3 and so on. If there are any inconsistencies or conflicts between this Agreement and an Order, the inconsistent or conflicting terms of the Order shall govern.
1.7. “Professional Services” shall mean any live support, consulting, training, or development services or other services as specifically described and priced in the applicable Order.
1.8. “Service Description” shall mean any description of Symbium’s Services that are advertised on Symbium’s Site or in the applicable Order, Symbium’s knowledge base, applicable operator and user manuals or guides, designs, technical reference manuals, flow diagrams, file descriptions, Service descriptions found on the Symbium site, and any other written materials pertaining to the use of the Solutions.
1.9. “Services” shall mean the Solutions and the Site, which are provided to Licensee by Symbium pursuant to the terms of this Agreement.
1.10. “Site” shall mean the Symbium website, located at www.symbium.com.
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1.11. “Solutions” shall mean the cloud-based SaaS web applications, which are identified in the applicable Order, along with all associated updates.
1.12. “Solution Updates” shall mean any Solution-specific version updates that are deployed to ensure the functionality of the Solutions in accordance with the Services Descriptions. Solution Updates shall exclude additional or new Solutions, even if such additional or new Solutions contain similar functionality as other Solutions.
1.13. “Support” shall mean the email support services provided by Symbium to Licensee during the Term.
1.14. “Symbium Data” shall mean any electronic data and publicly accessible or available data and shall include all computable laws and regulations that are embedded in the Solutions but shall exclude Licensee Data.
1.15. “Symbium Integrations” shall mean any additional SaaS solutions that Symbium develops and deploys, which may be integrated into or linked from the Solutions.
1.16. “Third-Party Services” shall mean any third-party products or services, including but not limited to, software or materials incorporated into or provided as part of the Solutions or software that Symbium integrates into via an available API.
1.17. “Transaction Services” shall mean the public-facing permitting and incentives Services offered by Symbium.
2. SERVICES
2.1. Orders. Symbium shall provide the Services in accordance with the applicable Order.
2.2. Changes. No change to the Order shall be implemented unless it has been approved in writing signed by an authorized representative of each Party (each, a “Change Order Amendment”). Upon Licensee’s and Symbium’s execution of the Change Order Amendment, the Change Order Amendment shall be incorporated into and become part of the applicable Order.
3. LICENSE
3.1. License Grant. Subject to the terms and conditions of this Agreement, Symbium hereby grants Licensee a nonexclusive, nontransferable, worldwide license (“License”) during the Term to access and use the Solutions. Symbium reserves all rights not expressly granted to Licensee. The License granted to Licensee pursuant to this Agreement will permit use of the Solutions that are set forth in the Order. Any Licensee Affiliate may also add additional Services under this Agreement via a new Order. LICENSEE SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY LICENSEE AFFILIATE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
3.2. Usage Restrictions. Except as permitted by this Agreement, the Solutions may not be decompiled, reverse engineered, disassembled, transferred, distributed in an unauthorized manner, resold, sublicensed, or used to create any derivative works. Licensees may not use any software (including network monitoring or discovery software) to determine the Site’s or Service’s architecture, or extract information about usage or individual identities of users. Licensee may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Services or any parts thereof. Except as expressly permitted in this Agreement, Licensee may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Services in any way; (ii) modify or make derivative works based upon the Services; (iii) "frame" or "mirror" any Solutions on any other server or wireless or Internet-based device. Licensee may use the Solutions only for its intended purposes and shall not: (i) send spam or otherwise excessive, duplicative, or unsolicited messages; (ii) send, store, or transmit any infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) attempt to gain unauthorized access to the Services or its related systems or networks; or (vi) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit.
3.3. Third-Party Services. In the event that Symbium agrees to certain integrations to Third-Party Services, Licensee shall secure the necessary permissions, when applicable, for Symbium to perform its mutually agreed-upon tasks.
Symbium is not responsible for any modification, loss, usage, disclosure, transmission, or deletion of any Licensee Data resulting from its access to a Third-Party Service or any outputs generated by the Solutions for uploading into Third-Party
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Services. Licensee shall be responsible for all third-party costs resulting from its requested integrations with any ThirdParty Service. In the event that Licensee wishes to use a Symbium-developed API, Symbium cannot warrant or guarantee that a Third-Party Service will continue to make access available to Symbium via such API.
4. PROFESSIONAL SERVICES
4.1. Professional Services. As mutually agreed by the Parties, and in conjunction with the Services, Symbium may perform certain Professional Services, which may include certain implementation, training, or other expert services.
Such Professional Services shall be provided for a separate fee, which will be specified in an applicable Order in accordance with the terms and conditions of this Agreement. Such Professional Services shall be provided in a manner that is consistent with applicable industry standards, and if such standards are not met (with a reasonable opportunity to cure following written notice from Licensee), Licensee’s sole remedy shall be the re-performance of such Professional Services.
5. SUPPORT
5.1. Support. Symbium will provide Support during the Term of this Agreement as set forth in the Order. Any Support requests should be directed to the following: [email protected].
6. LICENSEE OBLIGATIONS FOR CONFIGURED OR IMPLEMENTED SERVICES Where Symbium is configuring or implementing Services for Licensee, the following shall apply:
6.1. Designation of Licensee Project Manager. Licensee shall designate a project manager who shall be accessible by email throughout the Term of the Agreement and shall provide reasonably prompt responses to Symbium’s requests and communications.
6.2. Testing Period and Feedback. Licensee will be provided with an opportunity to provide feedback and request functional changes to the Solutions prior to public launch. Symbium shall also perform any requested bug fixes during this period and on an ongoing basis.
6.3. Hosting Link to Solutions. Upon the public launch of any public-facing Solutions that are configured or implemented for Licensee, Licensee shall place a prominent link and dedicated landing page to such Solutions on its public-facing website at the location where End-Users would normally visit for information on related services. This link and landing page shall be maintained by Licensee during the Term of the Agreement with support from Symbium.
6.4. Notification of Changes. Where Solutions are configured using laws or regulations provided by Licensee, Licensee shall cooperate with Symbium to help identify the publicly accessible online publications of those regulations and Symbium shall then establish a protocol to ensure timely notifications of changes to the regulations underlying the applicable Solutions and the data provided by the applicable Third-Party Services. In the absence of publicly accessible regulations that are published online, Licensee shall notify Symbium in writing (email is sufficient) of such changes.
7. PROPRIETARY RIGHTS
7.1. Symbium Properties. The Services and any underlying platform technology (“Symbium IP”) are owned or licensed by Symbium and protected by U.S. and international copyright, trademark, service mark, trade secret, patent and/or other proprietary rights and laws. All Solutions shall be hosted on Symbium’s designated servers at all times and Symbium will retain control over all user experience or user interface design of Solutions. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Licensee any license or right under copyright or other intellectual property right law. No part of the Symbium IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Licensee shall not take any action that shall interfere with or diminish Symbium’s right in any of the Symbium IP. Symbium shall retain ownership and title of any Solutions that it creates, even if created on a custom basis for Licensee.
7.2. Licensee Data and Symbium Data. As between Symbium and Licensee, Licensee shall, at all times, own or obtain the appropriate permissions to use the Licensee Data and shall be responsible for the accuracy and adequacy of any and all Licensee Data as well as establishing any required legal terms and conditions prior to the use of any Licensee
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Data. Licensee shall obtain all prior consents, internally or from relevant third parties, prior to uploading and using any Licensee Data to the Solutions. Licensee grants to Symbium a non-exclusive, royalty-free, worldwide license during the Term to access and use the Licensee Data for the purpose of delivering the Services, which may include the aggregation of such data in an anonymized manner for benchmarking and other purposes. Symbium’s right to use Symbium Data shall be governed by its own policies, including its Privacy Policy, available at https://symbium.com/privacy (“Privacy Policy”).
7.3. Symbium Integrations. Nothing shall prevent Symbium from developing and deploying Symbium Integrations, which Symbium may do at any time in its sole discretion. Symbium Integrations shall not diminish or degrade the functionality of the Solutions in the applicable Order at any time.
7.4. License to Use Feedback. Licensee grants to Symbium an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into the Services any feedback, suggestions, requests, or recommendations relating to the Services.
7.5. Usage Data. Licensee grants to Symbium an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into its own support offering, product development, operational plans, and sales or marketing materials, any anonymous usage data acquired from Licensee’s account and use of the Solutions.
7.6. References to Licensee / Press Release. Upon execution of this Agreement, Symbium may make references to Licensee and Licensee’s URL and may use Licensee’s designated trademark and logo for the limited purpose of publishing it on Symbium’s current list of Licensees located on the Symbium Site. Symbium may also respond to any inquiry regarding whether Licensee is a licensee and user of the Services. Additionally, upon execution of this Agreement, each Party may issue a press release announcing the Parties’ relationship under this Agreement.
8. FEES AND PAYMENTS
8.1. Fees. Symbium shall charge either Licensee or End-Users, as applicable, for the Services provided by Symbium hereunder as specified in the applicable Order.
8.2. Payment Methods. Symbium accepts payments for its Services from Licensee via check or electronic funds transfer and will cooperate, in good faith, to accommodate Licensee’s preference in either case. Payments for Transaction Services by End-Users shall be made by credit card.
8.3. Payment Terms. All pricing and payments are and shall be in U.S. dollars.
8.3.1. With respect to fees charged to Licensee, Licensee shall pay each invoice as stated in the Order or, if no due date is stated, within 30 days of receipt unless it has a bona fide dispute with respect to payment of such invoice or portion thereof. If there is a bona fide dispute regarding any invoice rendered or amount paid, the disputing Party shall notify the other by written notice thereof, and the Parties shall use their best efforts to resolve such dispute expeditiously. If an aggrieved Party notifies the other in writing of a disputed invoice or payment, and there is a good faith basis for such dispute, the time for paying the portion of the invoice in dispute shall be extended by a period of time equal to the time between receipt of such notice and the resolution of such dispute. Undisputed portions of any invoice shall be paid as stated above.
8.3.2. Symbium’s fees to End-Users for Transaction Services shall be inclusive of Symbium’s Service fees (E.g., a per-permit fee), as stated in the applicable Order, in addition to all fees that would otherwise be payable directly to Licensee by End-User (E.g., government fees).
8.4. Payment Processing Fees. Fees charged to End-Users for Symbium’s Transaction Services are nonrefundable. As between Symbium and Licensee, Symbium shall assume any credit card fees charged by Symbium’s thirdparty payment processors for Transaction Services that are processed on Symbium. As applicable, Symbium may pass through to End-Users any credit card processing fees charged by either of Symbium’s or Licensee’s payment processor (I.e., in cases where the Licensee charges $100 + $5 credit card processing fee for a total of $105, Symbium may pass through the $5 additional Licensee processing fee directly to the End-User.).
8.5. Taxes. Licensee shall be financially responsible for all sales or services taxes that are assessed on the provision of the Services to Licensee, excluding any withholding or export taxes or taxes based upon Symbium’s income.
To the extent Symbium is required to collect such taxes under applicable Law, Symbium, to the extent legally or otherwise required, shall separately state the amount of tax due on its invoices to Licensee. Licensee and Symbium shall cooperate to segregate the fees into: (i) those for taxable Services and (ii) those for nontaxable Services. The Parties shall reasonably cooperate with each other to more accurately determine each Party’s tax liability and to minimize such liability, to the
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extent legally permissible. In addition, Symbium shall provide and make available to Licensee any information regarding the computation of any such taxes as reasonably requested by Licensee. Symbium shall not pay any taxes based on the Services that Licensee and Symbium disagree on as to whether a tax is due without affording Licensee a reasonable amount of time after being called upon by the taxing authority to pay such tax to dispute the payment of such tax, at Licensee’s expense, in the appropriate legal forum.
9. CONFIDENTIALITY
9.1. Confidentiality. Except as set forth in Sections 9.2 and 9.3, as applicable, Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information as defined herein. “Confidential Information” means all information concerning a Party’s business not generally known to the public, whether or not marked as confidential. By way of illustration only, Confidential Information may include Licensee Data, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party. In maintaining the confidentiality of the other Party’s Confidential Information, each Party shall use at least the same standard that Party uses for its own confidential information of similar type, and shall take necessary precautions not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement. Each Party’s officers, employees, and subcontractors shall be bound by the terms of this Section or a similar written agreement with terms no less protective of either Party’s Confidential Information than this Agreement. Each Party acknowledges that any actual or threatened violation of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing Party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity. Nothing in this Section shall prohibit Symbium from disseminating aggregated information that contains no Confidential Information of Licensee.
9.2. Public Agency Exceptions and CPRA. This Section 9.2 shall apply to any Licensee that is a public agency subject to the disclosure requirements of the California Public Records Act (“CPRA”) or substantially similar requirements (the “Public Agency Exceptions”). Notwithstanding any other obligations set forth in Section 9, Licensee is not obligated to act in any way that is contrary to any requirements under the CPRA or Public Agency Exceptions. Symbium shall identify information that is protected under the CPRA or Public Agency Exceptions and shall clearly mark such information as “CONFIDENTIAL AND PROPRIETARY”, including identification of the specific lines containing such confidential and proprietary information subject to nondisclosure. In the event of a request for such information, Licensee will attempt, in good faith, but is not required, to provide written notice to Symbium prior to such disclosure. For information that Symbium wishes to protect from public disclosure, Symbium must obtain a protective order, injunctive relief or other appropriate remedy from a court of law in either San Francisco County or the Licensee’s County before the Licensee is required to respond to the CPRA request. If Symbium fails to obtain such remedy within the time the Licensee is required to respond to the CPRA or Public Agency Exceptions request, Licensee may disclose the requested information.
9.3. Cooperation. In the event of any unauthorized use or disclosure or loss of any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense: (i) notify the disclosing Party in writing; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the violation or the damage resulting therefrom; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
9.4. Limitation. Notwithstanding the provisions of this Section, Symbium may disclose Licensee’s Confidential Information, which includes personally identifying information and End-user activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that Symbium shall comply with any applicable protective order or equivalent and, unless prohibited by law, Symbium will employ commercially reasonable efforts to provide Licensee with prior written notice, so that Licensee has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Licensee for that purpose.
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10. REPRESENTATIONS AND WARRANTIES
10.1. Power and Authorization. Each Party hereby represents, warrants, and covenants to the other Party that (i) it is duly organized, validly existing and in good standing under the Laws of the state of its domicile and is in good standing in each other jurisdiction in which such qualification is required by Law; (ii) it has power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform the obligations under this Agreement, and (iii) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound.
10.2. Compliance with Law. Each Party hereby represents, warrants, and covenants to the other Party that in performing its obligations and exercising its rights under this Agreement, it will comply (and shall require all of its personnel providing Services hereunder to comply) with all applicable Laws.
10.3. By Licensee. Licensee hereby represents, warrants, and covenants to Symbium that: (i) it has obtained all the appropriate consents required by law to ensure that Licensee and Symbium have the right to use the Licensee Data in association with the Services and, if applicable, as described in Symbium’s Privacy Policy; and (ii) it will not use the Service to collect, upload, retrieve, transmit, send, and/or store any sensitive personally identifiable information in violation of any applicable laws. Symbium reserves the right to delete any Licensee Data that is in violation of any terms in this Agreement or of any applicable laws.
10.4. Disclaimer of Additional Warranties. SYMBIUM MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT FUTURE PRODUCT FEATURES .
11. INDEMNITIES
11.1. General Indemnities. Each Party (“Indemnifying Party”) shall defend, indemnify and hold the other Party (“Indemnified Party”) and its Affiliates and their respective officers, directors, employees, agents, contractors, successors, and assigns harmless from and against any and all damages, losses, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from or in connection with any actual judicial causes of actions by third parties (each a “Claim”) to the extent such Claim is based on or arises from or relates to (i) any breach or default of any provision of this Agreement by the Indemnifying Party; or (ii) negligent or intentional acts or omissions caused by the Indemnifying Party or its Affiliates and their respective officers, directors, employees, agents, contractors, successors and assigns. Indemnification Procedure. Each Indemnified Party shall provide the Indemnifying Party with prompt written Notice of any Claim for which the Indemnified Party is seeking or may seek indemnification hereunder (provided that the failure of the Indemnified Party to promptly notify the indemnifying Party hereunder shall not relieve the Indemnifying Party of any liability with respect to the Claim, except to the extent the Indemnifying Party demonstrates that the defense of the Claim is prejudiced by such failure). The Indemnified Party shall provide reasonable cooperation (at the Indemnifying Party’s expense) and retain full authority to defend or settle the Claim. The Indemnifying Party shall keep the Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any such Claim. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. The Indemnifying Party shall not have the right to settle any Claim if such settlement arises from or is part of any criminal action or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party without the prior written consent of such Indemnified Party.
12. LIMITATION OF LIABILITY
12.1. THE LIABILITY OF SYMBIUM AND LICENSEE TO EACH OTHER FOR ANY AND ALL
CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT,
NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH
OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AVERAGE MONTHLY FEES CONVERTED TO AN ANNUALIZED BASIS. LICENSEE ACKNOWLEDGES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.1
IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL
LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SYMBIUM WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. SYMBIUM HAS RELIED ON
THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE LICENSEE WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PURSUANT TO THIS AGREEMENT.
12.2. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM
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LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN
CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3. NOTWITHSTANDING THE FOREGOING, SECTION 12.1 AND SECTION 12.2 WILL NOT APPLY TO: (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS; (II) BREACH OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY; (III) ANY THIRD PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT; OR (IV) THE BREACH BY EITHER PARTY OF THEIR REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10.
13. COOPERATION
13.1. Cooperation. Each Party shall inform the other Party of any legal claims, demands or complaints brought:
(i) by a third party relating to the Services or products provided by Symbium to Licensee under this Agreement; or (ii) to any regulatory body relating to this Agreement or anything acquired hereunder. The Parties shall cooperate with each other with respect to the resolution of such complaints. For the avoidance of doubt, the Party against whom the complaint was made shall control the response to any regulatory body, if any, with respect to any such complaint.
14. TERM AND TERMINATION
14.1. Term. The initial term of this Agreement shall be as set forth in the applicable Order (“Initial Term”) and shall thereafter be renewed by the Parties for recurring one (1) year periods (“Subsequent Term”) unless either Party provides the other Party with termination or intention not to renew prior to the commencement of the next annual period.
The Initial Term and Subsequent Term may collectively be referred to as the “Term”.
14.2. Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party if such other Party commits a material breach of this Agreement and does not cure such breach within fifteen (15) days following its receipt of notice thereof from the terminating Party. No refunds shall be issued to Licensee in the event of termination under this Section 14.2 by Symbium for an uncured material breach by Licensee. Symbium shall issue a prorated refund of prepaid but unused fees to Licensee in the event that Licensee terminates this Agreement under this Section 14.2 for an uncured material breach by Symbium. “Material breaches” include: (i) failure by Symbium to deliver the Services as agreed under this Agreement; (ii) any breach of Section 7 (Proprietary Information); (iii) any failure by Licensee to pay fees when due; (iii) or any breaches by either Party of Sections 3 (License), 9 (Confidentiality), 10 (Representations and Warranties), 11 (Indemnities), or 13 (Cooperation). Any termination of this Agreement will automatically terminate any incorporated Orders.
14.3. Suspension of Services. Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Symbium’s Site or in connection with Symbium’s Services may result in immediate suspension of access to certain Solutions or termination of this Agreement with no refund and without limitation of any other available legal remedies. Symbium may suspend Licensee’s access to any Services until all overdue payments are paid in full.
Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Licensee will continue to be charged for the remainder of the term for any delinquent accounts. Licensee acknowledges and agrees that, unless otherwise required in this Agreement, Symbium has no obligation to retain any data on behalf of Licensee and that such data, if any, may be irretrievably deleted upon termination of this Agreement.
14.4. Remedies Not Limiting. The remedies provided in this Section 14 are in no way limiting of one another or of any other rights and remedies granted to either Party under this Agreement. Symbium may choose to, but is not required to, place Licensee’s account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.
15. MISCELLANEOUS
15.1. Notices. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either sent by trackable courier or email to the recipients listed in the Order. Notices by courier shall be effective upon proof of delivery by either Party. Email notices shall be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change in the same manner required in this Section 15.1.
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15.2. Assignment; Binding Effect. Neither Party shall assign or transfer this Agreement nor delegate any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, upon written notice to Licensee, Symbium may assign this Agreement to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets.
Any assignment, transfer or delegation of rights or obligations hereunder in contravention of this Section shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties to this Agreement and their respective successors and permitted assigns.
15.3. Dispute Resolution; Equitable Relief. The Parties agree that, in the event of a dispute or alleged breach, they shall first work together in good faith to resolve the matter internally through negotiations and, if necessary, by escalating it to higher levels of management. The foregoing shall not apply to, and shall not prevent a Party from seeking immediate relief in the event of, disputes involving the confidentiality or data protection provisions of this Agreement or infringement of intellectual property rights (in which case either Party shall be free to seek available remedies in a court of competent jurisdiction in accordance with the Governing Law Section of this Agreement).
15.4. Entire Agreement; Amendment. This Agreement sets forth the entire understanding between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous representations, discussion, negotiations, letters, proposals agreements and understandings between the Parties hereto with respect to the subject matter hereof, whether written or oral. This Agreement may be amended, modified or supplemented only in a writing duly executed by an authorized representative of each of Licensee and Symbium.
15.5. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. For any disputes that are not resolved by way of good faith negotiations and settlement, the Parties hereby consent to the exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts of Los Angeles , County of Los Angeles , California.
15.6. Headings. The section headings in this Agreement are for reference and convenience only and do not explain, modify, interpret, or expand the provisions of this Agreement.
15.7. Independent Contractors. In making and performing under this Agreement, the Parties are acting and shall act as independent contractors and not that of master and servant or partnership. Neither Party is, nor will be deemed to be, an agent, legal representative, joint venture, or partner of the other Party for any purpose. Neither Party shall have any authority to act for or to bind the other Party in any respect, nor shall either Party hold itself out as having such authority.
Each Party agrees to assume complete responsibility for its own employees with regard to federal or state employer’s liability, worker’s compensation, social security, unemployment insurance, and Occupational Safety and Health Administration requirements, and other laws.
15.8. Severability. If any of the provisions of this Agreement are declared to be invalid or unenforceable by a court of competent jurisdiction, such provisions shall be ineffective to the extent of such invalidity or unenforceability while the other provisions hereof shall remain in full force and effect.
15.9. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed on behalf of the Party against whom it is asserted. Any consent by any Party to, or waiver of, a breach of the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any continuing, different, or subsequent breach of this Agreement by such Party.
15.10. Survival. The provisions of this Agreement, which by their nature survive expiration or termination of this Agreement, shall survive, including, but not limited to the following Sections: 7 (Proprietary Rights), 9 (Confidentiality), 10 (Representations and Warranties), 11 (Indemnities), and 12 (Limitation of Liability).
15.11. Controlling Document. Notwithstanding any inconsistent or additional terms and conditions which may be contained in a purchase order, invoice, voucher or other similar document issued by either Party, such document shall be for issuing Party’s internal purposes only and the terms and conditions of this Agreement shall prevail. Therefore, even if such document is acknowledged or accepted by the receiving Party and regardless of any statement to the contrary which may be contained therein, the inconsistent or additional terms and conditions of such purchase order, invoice, voucher or other similar document shall have no force or effect on this Agreement.
15.12. Interpretation; Construction. Unless the context of this Agreement clearly requires otherwise, (i) references to the plural include the singular, the singular the plural, the part the whole, (ii) references to any gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive
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meaning frequently identified with the phrase “but not limited to,” and (v) references to “hereunder” or “herein” relate to this Agreement. The Parties agree that this Agreement is the result of careful negotiations between sophisticated Parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
15.13. Signature/Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both of which, taken together, shall constitute one agreement binding on both Parties. A facsimile signature or electronic signature (or e-signature) shall have the force and effect of an original signature, and in the absence of an original signature, shall constitute the original signature.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THE AGREEMENT, UNDERSTAND IT AND AGREE
TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING ON BEHALF OF EACH HAS BEEN AUTHORIZED TO DO SO. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
SYMBIUM CORP. CITY OF MALIBU
By: By:
Name: Leila Banijamali Name: Steve Uhring
Title: CEO Title: Mayor
Email: [email protected] Email: [email protected]
Date: Date:
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EXHIBIT A-1 – ORDER
This Order, once executed, is governed by the Symbium Master Licensing Agreement between Symbium Corp. (“Symbium”) and the City of Malibu (“Licensee”) (the “Agreement”). All fees set forth herein are due pursuant to the terms of the Agreement. All capitalized terms used but not defined herein will have the meaning assigned to them in the Agreement. This Order shall control in the event of any conflict between this Order and the Agreement.
Prepared For:
City of Malibu
Order No.:
MALIBU-001
Make Payment to:
Symbium Corp.
City of Malibu
Yolanda Bundy, ESD Director/ Building
Official
Building Safety
23825 Stuart Ranch Road
Malibu, CA 90265
[email protected]
Initial Term:
2 years
Symbium Corp.
912 Cole St., #375
San Francisco, CA 94117
[email protected] Payment Frequency:
N/A
SaaS Solution / Service Description Billing
Symbium’s Citizen’s Dashboard for
SB379 Compliance
● Web-based public-facing automated plan review
for solar energy systems as required by SB379
● $25 Symbium service fee per permit or revision,
charged to applicants at point of sale.
$0 as part of Symbium
SB379 Pilot Program.
Symbium Express Permits ● Web-based public-facing automated plan review for additional electrification and no-plan
permits, as requested by Licensee.
● $25 Symbium service fee per permit or revision,
charged to applicants at point of sale.
$0 as part of Symbium
Express Pilot Program.
Included Integrations Read-write integrations into existing permit tracking system (PTS), given available APIs.
$30,000 (CalAPP funds)
Ongoing Support and Maintenance Quarterly updates $0
Total $0
Additional Terms and Conditions:
1. Unless noted otherwise, the pricing above includes initial implementation and training to ensure proper use and shall be invoiced upon execution of the Agreement.
2. Symbium shall be the exclusive provider of the Services for Licensee during the Term.
3. Any additional Solutions or Services requested by Licensee that exceed the scope of this Order shall be subject to a separate signed Order between the Parties.
4. Support is available by email: [email protected].
ACCEPTED AND AGREED BY:
Symbium Corp. City of Malibu
BY: DATE: BY: DATE:
NAME: Leila Banijamali NAME: Steve Uhring
TITLE: CEO TITLE: Mayor
EMAIL: [email protected] EMAIL: [email protected]
Agenda Item # 3.B.12
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Joseph D. Toney, Assistant City Manager
Approved by: Steve McClary, City Manager
Date prepared: May 6, 2024 Meeting date: May 28, 2024
Subject: Professional Services Agreement with Granicus LLC RECOMMENDED ACTION: Authorize the Mayor to execute Amendment No. 2 to the Professional Services Agreement with Granicus LLC for short-term rental administration.
FISCAL IMPACT: No additional appropriation is required. Funding for this agreement is included in the Adopted Budget for FY 2023-24 in Account No. 100-7054-5100 (FinanceProfessional Services), and is included in the FY 2024-25 Proposed Budget. The term of the amendment will not exceed $46,081.19, for a total agreement not-to-exceed of $310,162.57. The expenditures are offset by Transient Occupancy Tax revenues.
STRATEGIC PRIORITY: This item is part of the day-to-day operations identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: On February 12, 2018, after conducting a request for proposals (RFP) process, the City executed an agreement with Host Compliance LLC for short-term rental (STR) administration. In November 2019, Host Compliance LLC was acquired by Granicus LLC.
On September 29, 2020, the City Council adopted Ordinance No. 468 (STR Enforcement Ordinance), which created a new permit system to regulate the STR of residential property and went into effect January 15, 2021. In November 2020, the City launched its inline STR permitting process and City staff have been successfully using the Granicus system to process permits and monitor STR listings.
On January 10, 2022, the City Council approved Amendment No. 1 to the agreement to increase the Compensation for Service and extend the term to February 2024. While the current contract lapsed in February and while the details of the Amendment were worked City Council Meeting
05-28-24
Item
3.B.12
Agenda Item # 3.B.12
out, Granicus has continued to provide excellent service consistent with Exhibit A. Staff recommends that the City Council authorize the Mayor to execute Amendment No. 2 to the Professional Services Agreement with Granicus LLC adjusting the scope, to include tax collection, extending the term until February 12, 2024, and increasing the Compensation for Services.
ATTACHMENTS: Amendment No. 2 to Professional Services Agreement with Granicus LLC.
AMENDMENT NO. 2 TO AGREEMENT
THIS AMENDMENT NO. 2 TO AGREEMENT is made and entered in the City of Malibu on May 28, 2024, by and between the CITY OF MALIBU, hereinafter referred to as City, and Granicus LLC, a Minnesota Limited Liability Company, hereinafter referred to as Consultant.
The City and the Consultant agree as follows:
R E C I T A L S
A. On February 13, 2018, the City entered into an Agreement with Host Compliance LLC for consulting and software services related to permitting, compliance monitoring and enforcement of the City’s ordinances, regulations and tax rules related to short term rentals (the “Agreement”).
B. Host Compliance LLC was acquired by Granicus LLC, a Minnesota Limited Liability Company on November 8, 2019, and the parties assigned the Agreement to Granicus.
C. On February 3, 2022, the City entered into Amendment No. 1 with Consultant to extend the term and increase the Compensation for Services.
D. The City desires to amend the Agreement to increase the scope, extend the term, and increase the Compensation for Services, and Consultant has submitted a proposal for this purpose that is acceptable to the City.
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:
1. Section 1.0 – Scope of the Consultant’s Services, of the Agreement, is hereby amended as set forth in Exhibit A attached hereto.
2. Section 2.0 – Term of Agreement, of the Agreement, is hereby extended to February 12, 2025.
3. Section 4.0 – Compensation for Services, of the Agreement, is hereby amended as set forth in Exhibit A attached hereto within a not to exceed amount of $46,081.19.
4. The Parties agree that this Amendment will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
5. All terms and conditions of the Agreement not amended by this Amendment No. 2 remain in full force and effect.
This Agreement is executed on ______________________, at Malibu, California, and effective as of February 13, 2024.
CITY OF MALIBU:
____________________________________
STEVE UHRING, Mayor
ATTEST:
____________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
Amendment No. 2 to Agreement
Granicus LLC
_____________________
APPROVED AS TO FORM: CONSULTANT:
_____________________________________ ____________________________________ TREVOR RUSIN, Interim City Attorney By: BERNADETTE FOLEY Title: Senior Manager, Renewals
THIS IS NOT AN INVOICE Order Form
Prepared for
Malibu, CA
Order #: Q-314912
Prepared: 29 Mar 2024
Granicus Proposal for Malibu, CA
ORDER DETAILS
Prepared By: Korgbae Freeman
Phone:
Email: [email protected]
Order #: Q-314912
Prepared On: 29 Mar 2024
Expires On: 31 March 2024
Currency: USD
Payment Terms: Net 30 (Payments for subscriptions are due at the beginning of the period of performance.)
Period of Performance: 13 Feb 2024 - 12 Feb 2025
ORDER TERMS
Current Subscription
End Date: 12 Feb 2024
Order Form
Malibu, CA
Order #: Q-314912
Prepared: 29 Mar 2024
PRICING SUMMARY
The pricing and terms within this Proposal are specific to the products and volumes contained within this Proposal.
Renewing Subscription Fees
Solution Billing
Frequency Quantity/Unit Annual Fee
Mobile Permitting & Registration Annual 1 Each $5,000.00 Tax Collection Annual 1 Each $5,959.00
Address Identification Annual 1 Each $17,340.00
Compliance Monitoring Annual 1 Each $5,700.00
24/7 Hotline Annual 439 Rental
Units $4,482.19
Rental Activity Monitoring Annual 1 Each $7,600.00
SUBTOTAL: $46,081.19
Order Form
Malibu, CA
Order #: Q-314912
Prepared: 29 Mar 2024
PRODUCT DESCRIPTIONS
Solution Description
Mobile Permitting & Registration Mobile-enabled online forms and back-end systems for streamlining the registration/licensing/permitting of individual short-term rental hosts. These registration forms and workflows include:- Parcel Number lookup and validation
- E-Signatures
- ACH, Debit, and Credit Payments exclusively powered by Stripe.com - Registration Number & Certificate creation
- Document Upload
- Renewals
- Email confirmation
- Admin approval & denial
Tax Collection Tax Collection can be built as a separate mobile-enabled form or coupled with Mobile Permitting & Registration in one single portal allowing your users to:- Report revenue monthly, quarterly, or annually and pay sales tax due (i.e TOT)
- Remind users when they are registering for a permit/license to also report any back taxes
- Collect ACH, Debit, and Credit Payments exclusively powered by Stripe.com
Address Identification Ongoing monitoring of 60+ Short Term Rental websites including major platforms Airbnb, VRBO, HomeAway, Booking.com, FlipKey, & Expedia. Our machine learning will deduplicate all known Listings into unique Rental Units, where our identification team will provide owner contact information for further enforcement. This product includes:- Ongoing monitoring of all listings in your jurisdiction
- Updating listing activity and details every 3-5 days
- Screenshot activity of every listing
- Deduplication of listings into unique Rental Units
- Activity dashboard and map to monitor trends and breakdown of compliance
Compliance Monitoring Compliance monitoring provides up-to-date information for each identified Rental Unit and its compliance status. We configure your compliance definition specific to your jurisdiction rules and ordinances in order to provide up-to-date compliance status of each identified Rental Unit. Additionally, this product will:- Allow your team to send letters to noncompliant properties 24/7 - Configure letter templates with your branding and letterhead - Add as many letter sequences as you need for escalation - Monitor properties that become compliant after letter enforcement Order Form
Malibu, CA
Order #: Q-314912
Prepared: 29 Mar 2024
Solution Description
24/7 Hotline 24/7 web and phone hotline for your community to report short term rental complaints such as parking, trash, noise disturbances, and illegal short term rentals. This product include:- Mobile-enabled online web form for citizens to submit tips or complaints (text, videos, and photos) - 24/7 call center for citizens to contact and report complaints verbally - Recordings for all call center complaints
- Email notifications to your team when complaints are logged - Automatic outbound IVR calls and SMS messages to permit emergency contacts notifying them of the complaint
- SMS support for emergency contacts to mark a complaint as acknowledged or resolved with the ability to send resolution notes - Hotline Dashboard for tracking complaint volumes, trends, and categories
- Ability to upload Notes/Comments to each complaint
Rental Activity Monitoring Ongoing monitoring of Short Term Rental listings for signs of rental activity including historical revenue estimates & occupancy. Coupled with our Tax Collection product, users can also compare historical revenue estimates to actual reported revenue to identify those that may be underreporting and underpaying sales tax (i.e. TOT).
Order Form
Malibu, CA
Order #: Q-314912
Prepared: 29 Mar 2024
TERMS & CONDITIONS
• This quote, and all products and services delivered hereunder are governed by the terms located at https://granicus.com/legal/licensing, including any product-specific terms included therein (the “License Agreement”). If your organization and Granicus has entered into a separate agreement or is utilizing a contract vehicle for this transaction, the terms of the License Agreement are incorporated into such separate agreement or contract vehicle by reference, with any directly conflicting terms and conditions being resolved in favor of the separate agreement or contract vehicle to the extent applicable. • If submitting a Purchase Order, please include the following language: The pricing, terms and conditions of quote Q-314912 dated 29 Mar 2024 are incorporated into this Purchase Order by reference and shall take precedence over any terms and conditions included in this Purchase Order. • This quote is exclusive of applicable state, local, and federal taxes, which, if any, will be included in the invoice. It is the responsibility of Malibu, CA to provide applicable exemption certificate(s). • Any lapse in payment may result in suspension of service and will require the payment of a setup fee to reinstate the subscription.
• A one time credit in the amount of $5,959.00 will be applied to the 2024-2025 renewal term. • A second credit in the amount of $3,965.86 will be applied to the 2024-2025 renewal term.
Order Form
Malibu, CA
Order #: Q-314912
Prepared: 29 Mar 2024
BILLING INFORMATION
Billing Contact: Purchase Order
Required?
[ ] - No
[ ] - Yes
Billing Address: PO Number:
If PO required
Billing Email: Billing Phone:
If submitting a Purchase Order, please include the following language:
The pricing, terms, and conditions of quote Q-314912 dated 29 Mar 2024 are incorporated into this Purchase Order by reference and shall take precedence over any terms and conditions included in this Purchase Order.
AGREEMENT AND ACCEPTANCE
By signing this document, the undersigned certifies they have authority to enter the agreement. The undersigned also understands the services and terms.
Malibu, CA
Signature:
\s1\
Name:
\n1\
Title:
\t1\
Date:
\d1\
Agenda Item # 3.B.13
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Alexis Brown, Deputy City Manager
Approved by: Steve McClary, City Manager
Date prepared: May 14, 2024 Meeting date: May 28, 2024
Subject: Amendment to Professional Services Agreement with Michael Matthews for Consulting Services Related to School Separation RECOMMENDED ACTION: Authorize the Mayor to execute Amendment No. 1 to the Professional Services Agreement with Michael Matthews for consulting services related to mediation, separation, and the establishment of the Malibu Unified School District for a total contract amount of $115,000.
FISCAL IMPACT: No additional appropriation is required. Funding for this agreement/project is included in the Adopted Budget for FY 2023-24 in Account No. 100- 7001-5100 (City Council-Professional Services)
STRATEGIC PRIORITY: This item supports the School District Separation priority identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: In August of 2023, the City of Malibu entered into a professional services agreement with Michael Matthews. The proposed amendment No. 1 seeks to increase the budget by $90,000, for a total contract amount of $115,000.
Mr. Matthews has played a pivotal role in guiding the City through the complexities of the Santa Monica Malibu Unified School District (SMMUSD) separation process. The increase is deemed necessary to address the heightened demands placed on the consultant's work as the City works to finalize the revenue sharing and operational budgets.
ATTACHMENTS:
1. Amendment No. 1 to Professional Services Agreement
City Council Meeting
05-28-24
Item
3.B.13
AMENDMENT NO. 1 TO AGREEMENT
THIS AMENDMENT NO. 1 TO AGREEMENT is made and entered in the City of Malibu on May 28, 2024, by and between the CITY OF MALIBU, hereinafter referred to as City, and Michael Matthews hereinafter referred to as Consultant.
The City and the Consultant agree as follows:
R E C I T A L S
A. On August 1, 2023, the City entered into an Agreement with Consultant for advisory services in support of the City’s negotiation and mediation with the Santa Monica-Malibu Unified School District (SM-MUSD) and the City’s petition for creating a Malibu Unified School District (MUSD) to the Los Angeles County Committee on School District Organization (the “Agreement”).
B. The City desires to amend the Agreement to increase the scope and increase the budget for the term of this agreement.
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:
1. Section 1.0 – Scope of the Consultant’s Services, of the Agreement, is hereby amended as set forth in Exhibit A attached hereto.
2. Section 4.0 – Compensation for Services, of the Agreement, is hereby amended as set forth in Exhibit B attached hereto.
3. The Parties agree that this Amendment will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
4. All terms and conditions of the Agreement not amended by this Amendment No. 1 remain in full force and effect.
This Agreement is executed on ______________________, at Malibu, California, and effective as of May 28, 2024.
CITY OF MALIBU:
____________________________________
STEVE UHRING, Mayor
ATTEST:
____________________________________
KELSEY PETTIJOHN, City Clerk
(seal)
APPROVED AS TO FORM: CONSULTANT:
_____________________________________ ____________________________________ TREVOR RUSIN, Interim City Attorney By: Michael Matthews Attachment 1
Amendment No. 1 to Agreement
Michael Matthews
_____________________
EXHIBIT A
SCOPE OF WORK
The Consultant will work at the direction and under the supervision of the City Attorney to provide advisory services in support of the City’s negotiation and mediation with the Santa Monica-Malibu Unified School District (SM-MUSD) and the City’s petition for creating a Malibu Unified School District (MUSD) to the Los Angeles County Committee on School District Organization. In this capacity, the Consultant may work with the City Council’s School District Separation Ad Hoc Committee, City staff, and other consultants.
• The Consultant’s work shall include the following tasks as requested:
• Review records, documentation, and reports related to school district separation. • Review budgets, formulas, and financial models prepared by the Mediator, Ryland School Business Consulting/Capitol PFG, Kirk-Carter and Associates, and East Shore Consulting and provide feedback and advice.
• Advise on budget development for MUSD.
• Assist with the preparation of agreements to facilitate school district separation. • Meet with SM-MUSD staff to understand current practices related to staffing, educational program, instructional materials, transportation, food services, and other information needed to develop agreements to facilitate school district separation. • Review reports related to assets and liabilities of SM-MUSD and provide advice and direction on allocation of assets and liabilities post-separation. • Identify facilities needed to support future MUSD operations. • Coordinate with SM-MUSD facilities department staff on facilities planning and funding efforts related to schools located in Malibu.
• Provide guidance and direction on educational program that will be offered at MUSD after separation.
• Meet with union leadership regarding school district separation efforts. • Act on assignments that result from conversations with City Attorney and City Staff. • Prepare and present to City Council and other entities. • Participate in mediation and negotiations between the City and the School District. • Attend and present at the City’s School District Separation Ad Hoc Committee meeting(s) as well as LACOE’s County Committee meeting(s).
• Prepare community outreach materials and perform community outreach activities including but not limited to making presentations and answering questions at community meetings. • Attend weekly calls with City Attorney and consultant team.
Amendment No. 1 to Agreement
Michael Matthews
_____________________
Exhibit B
Payment Schedule
The Consultant shall be paid an hourly rate of one hundred and fifty dollars ($150.00) for professional services negotiation and mediation with the Santa Monica-Malibu Unified School District (SM-MUSD). The Consultant shall be compensated for travel time and expenses. Expenses are defined as actual, out of pocket expenses including but not limited to airfare, lodging, meals, telephone charges, express or overnight mail charges. All expenses and travel time must be preapproved by the City.
The cost of the work described in Exhibit A shall not exceed $90,000. Therefore, the cost of the work described in Exhibit A of this Agreement as amended by this Amendment No. 1 shall not exceed $115,000. The Consultant shall only bill the City for hours actually incurred.
Agenda Item # 3.B.14
Council Agenda Report
To: Mayor Uhring and the Honorable Members of the City Council Prepared by: Joseph D. Toney, Assistant City Manager
Approved by: Steve McClary, City Manager
Date prepared: April 25, 2024 Meeting date: May 28, 2024 Subject: Amendment to Professional Services Agreement with SDI Presence (Continued from May 13, 2024)
RECOMMENDED ACTION: Authorize the Mayor to execute Amendment No. 3 to the Professional Services Agreement with SDI Presence LLC.
FISCAL IMPACT: No additional appropriation is required. Funding for this agreement is included in the Adopted Budget for FY 2023-24 in Account No. 602-7060-5100 (Information Systems – Professional Services) and the FY 2024-25 Proposed Budget in Account No. 310-9124-5100 (Land Management System-Professional Services).
STRATEGIC PRIORITY: This item supports the Development Services Updated Software priority identified in the Adopted FY 2023-24 Strategic Priority Project List.
DISCUSSION: On August 27, 2018, the City Council authorized the City Manager to execute a Professional Services Agreement with SDI Presence LLC for information technology administrative services to develop the City’s IT Assessment and Strategic Plan. The project was launched in October 2018 but was put on hold in the aftermath of the Woolsey Fire and the COVID-19 pandemic. Due to the clear need for permitting software, staff reengaged SDI and modified the scope of work with Amendment 2 in May 2022 to assist with pursuing the procurement of permitting software, also referred to as a land management system (LMS).
The consultant coordinated with staff to identify clear specifications of a new system, conduct a Request for Proposals (RFP), and interview potential vendors. This was a detailed and arduous process that narrowed down the best options for a LMS provider for the City. The City momentarily paused the project before negotiating acquisition and committing to a system in order to give consideration to operational and staffing needs for the huge undertaking that would commence with proceeding to the next step.
City Council Meeting
05-28-24
Item
3.B.14
Agenda Item # 3.B.14
In the meantime, staff worked through recommendations received from the Comprehensive Development Services Review (CDSR). Staff have been able to improve operations and implement an interim solution for application submittal and review through online portal improvements. These improvements have provided the City team with revamped workflows and processes, as well as some operational buffer, to be in a better position to begin working on a full LMS. A full LMS is a significant project that could take up to two years to implement.
In order to facilitate a LMS project, one of the significant recommendations of the CDSR (Recommendation #22) is to hire a consultant project manager with experience implementing the selected LMS to expedite implementation. SDI is the best and most appropriate consultant project manager for this effort. Having worked through the RFP process and supported the City with other engagements, there is no other consultant project manager that will have the knowledge and understanding of the City as well as SDI. Their services are specialized and essential to this effort.
Malibu Municipal Code 2.56.130(b).3 creates an exception to the City’s competitive bidding process for certain services: “[w]here the contract is for specialized or professional services such as, but not limited to, services rendered by architects, engineers, attorneys, appraisers, geologists, and other specialized consultants.” It would be impractical and unreasonable to find these specialized services from a better consultant to lead this effort than SDI. SDI has a demonstrated history and project knowledge that cannot be found by another bidder. Further, another bidder would require many hours to get up to speed on the status of the project and this would come at a substantial cost to the City. Thus, staff is recommending that we proceed with this Amendment 3 to retain SDI as the LMS Project Consultant.
As outlined in the proposal, SDI will lead two distinct phases. Phase 1-Initiate, is the broad overview and laying the roadmap for the project. Phase 2-Implement, will be the major lifting of the project that will require significant project team staff time, development, and testing. These types of systems require that the organization build out the system based on workflows and organizational needs, so it is not as simple as plug and play. Building out a LMS requires significant support and guidance from an expert consultant project manager, SDI, as identified by the recommendation in the CDSR.
The proposal is estimating 1,040 hours of project management consulting at a rate of $185 per hour, for an estimated total of $192,400, and estimated incidentals of $14,000, for a total not-to-exceed of $206,400.
ATTACHMENTS: Amendment No. 3 to the Professional Services Agreement with SDI Presence LLC
AMENDMENT NO. 3 TO AGREEMENT
THIS AMENDMENT NO. 3 TO AGREEMENT is made and entered in the City of Malibu on May 13, 2024, by and between the CITY OF MALIBU, hereinafter referred to as City, and SDI Presence LLC, hereinafter referred to as Consultant.
The City and the Consultant agree as follows:
RECITALS
A. On August 27, 2018, the City entered into an Agreement with Consultant for consulting services for certain project relating to information technology administrative services (the "Agreement").
B. On November 23, 2020, the City entered into Amendment No. 1 with Consultant to extend the term to December 1, 2022.
C. On May 9, 2022, the City entered into Amendment No. 2 with Consultant to increase the scope, extend the term and increase the budget.
D. The City desires to amend the Agreement to increase the scope, extend the term and increase the Compensation for Services, and Consultant has submitted a proposal for this purpose that is acceptable to the City.
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:
1. Section 1.0 - Scope of the Consultant's Services, of the Agreement, is hereby amended as set forth in Exhibit A attached hereto.
2. Section 2.0 - Term of Agreement, of the Agreement, is hereby extended to June 30, 2026.
3. Section 4.0 - Compensation for Services, of the Agreement, is hereby amended as set forth in Exhibit A attached hereto. The cost of work described in Exhibit A to the Agreement shall not exceed $206,400, for a total not to exceed amount for the entire Agreement of $360,150.
4. The Parties agree that this Amendment will be considered signed when the signature of a party is delivered physically or by facsimile transmission or scanned and delivered via electronic mail. Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
5. All terms and conditions of the Agreement not amended by this Amendment No. 3 remain in full force and effect.
This Agreement is executed on __________ , at Malibu, California, and effective as of May 28, 2024.
ATTEST:
KELSEY PETTIJOHN, City Clerk
(seal)
CITY OF MALIBU:
STEVE UHRING, Mayor
Attachment #1
APPROVED AS TO FORM:
TREVOR RUSIN, Interim City Attorney
CONSULTANT:
Amendment No. 3 to Agreement
SDI Presence LLC