-1-
2174192v6 City of MB Form Approved for Use 3/01/2021
INSPECTION SERVICES AGREEMENT
This Inspection Services Agreement (“Agreement”) is entered into and effective as of the last date of execution below (“E ffective Date”) by and between the City of Manhattan Beach, a California municipal corporation (“City”) and Z&K Consultants Inc., a California corporation (“Consultant”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. City issued Request for Proposals No. E1273-22S on November 23, 2022, titled “Inspection Services for Slurry Seal Project – North Area of Sand Section”.
Consultant submitted a proposal dated December 12, 2022 in response to the RFP.
B. Consultant represents that it is fully qualified to perform such services by virtue of its experience and t he training, education and expe rtise of its principals and employees.
C. City desires to retain Consult ant as an independent contractor and Consultant desires to serve City to perform these services in accordance with the terms and conditions of this Agreement.
The Parties therefore agree as follows:
1. Consultant’s Services.
A. Scope of Services. Consultant sha ll perform the services described in the Scope of Services (the “Services”) for inspection services of the Slurry Seal Project North Area of the Sand Section, attached as Exhibit A. City may request, in writing, changes in the Scope of Services to be performed. Any changes mutually agreed upon by the Parties, and any increase or decrease in compensation, shall be incorporated by written amendments to this Agreement.
B. Party Representatives. For the purposes of this Agreement, the City Representative shall be the City Manager, or such other person designated in writing by the City Manager (the “City Representative”). For the purposes of this Agreement, the Consultant Representative sha ll be Crystal Faqih, President (the “Consultant Representative”). The Consultant Repres entative shall directly manage Consultant’s Services under this Agreement. Consul tant shall not cha nge the Consultant Representative without City’s prior written consent.
C. Time for Performance. Consultant shall commence the Services on the Effective Date and shall perform all Servic es by the deadline est ablished by the City Representative or, if no deadline is established, with reasonable diligence.
D. Standard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like -2-
2174192v6 City of MB Form Approved for Use 3/01/2021
professionals under similar ci rcumstances and in a manner r easonably satisfactory to City.
E. Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such Services.
F. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes, regulations and requirements.
G. Permits and Licenses. Consultant shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates required by law for the provision of Services under this Agreement, including a business license.
H. Prevailing Wages. This Agreement ca lls for services that, in whole or in part, constitute “public works” as defined in the California Labor Code. Therefore, as to those services that are “public works”, Consultant shall comp ly in all respects with all applicable provisions of the California Labor Code, including those set forth in Exhibit C hereto.
2. Term of Agreement. The term of this Agreement shall be from the Effective Date through December 31, 2024, unless sooner terminat ed as provided in Section 12 of this Agreement or extended. The City Manager or his/her designe e may extend the term of the Agreement in writing for up to two additi onal one-year terms, or such other term not to exceed two years from the date of termination, purs uant to the same terms and conditions of this Agreement. If not renewed prior to the termination date, this Agreement may continue on a month-to-month basis under the same terms and conditions for a maximum period not to exceed six months or until renewed, terminated or awarded to a new consultant, whichever is less.
3. Compensation.
A. Compensation. As full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the Approved Fee Schedule attached hereto as Exhibit B. In no event shall Consultant be paid more than $52,224.00 (the “Maximum Compensation”) for such Services.
B. Expenses. City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit B.
C. Unauthorized Services and Expenses. City will not pay for any services not specified in the Scope of Services, or reimburse for any expenses not set forth in Exhibit B, unless the City Council or the City Represent ative, if applicable, and the Consultant Representative authorize such se rvices or expenses in writ ing prior to Consultant’s performance of those services or incurrenc e of additional expenses. Any additional services authorized by the City Council, or (where authorized) the City Manager shall be -3-
2174192v6 City of MB Form Approved for Use 3/01/2021
compensated at the rates set forth in Exhibit B, or, if not specified, at a rate mutually agreed to by the Parties. Any additional expense authorized by the City Council or (where authorized) the City Manager shall be reimbursed in the amounts authorized by the City Council or City Manager. City shall make payment for additional services and expenses in accordance with Section 4 of this Agreement.
4. Method of Payment.
A. Invoices. Consultant shall submit to City an invoice, on a monthly basis, for the Services performed pursuant to this Agreement. Invoices must be submitted to Bianca Cardenas, Associate Engineer at [email protected], (310) 802- 5357. Each invoice shall itemize the Services rendered during the billing period, hourly rates charged, if applicable, and the amount due. City shall review each invoice and notify Consultant in writing within ten Business days of receipt of any disputed invoice amounts.
B. Payment. City shall pay all undis puted invoice amounts within 30 calendar days after receipt up to the Maximum Com pensation set forth in Section 3 of this Agreement. City does not pay interest on past due amounts. Cit y shall not withhold federal payroll, state payroll or other taxes, or other similar dedu ctions, from payments made to Consultant. Notwithstanding the pr eceding sentence, if Consultant is a nonresident of California, City will withhold the amount required by the Franchise Tax Board pursuant to Revenue and Taxati on Code Section 18662 and applicable regulations.
C. Audit of Records. Consultant shall make all records, invoices, time cards, cost control sheets and other records mainta ined by Consultant in connection with this Agreement available during Consultant’s r egular working hours to City for review and audit by City.
5. Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor . Consultant shall have no power to incur any debt, obligation, or liability on behalf of City. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Cons ultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City.
6. Information and Documents.
A. Consultant covenants that all data, reports, documents, surveys, studies, drawings, plans, maps, m odels, photographs, discussion, or other information (collectively “Data and Documents”) developed or received by Consultant or provided for performance of this Agreem ent are deemed confidential and shall not be disclosed or released by Consultant without prior written aut horization by City. City shall grant such authorization if applicable law r equires disclosure. Consult ant, its officers, employees, agents, or subcontractors shall not without written authorization from the City Manager or unless requested in writing by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information -4-
2174192v6 City of MB Form Approved for Use 3/01/2021
concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a s ubpoena or court order shall not be considered “voluntary,” provided Consultant gives City notice of such court order or subpoena.
B. Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request fo r documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder or with res pect to any project or property located within the City. City may, but has no obligation to, represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, City’s right to review any such response does not imply or mean the right by City to control, direct or rewrite the response.
C. All Data and Document s required to be furnished to City in connection with this Agreement shall become City’s property, and City may use all or any portion of the Data submitted by Consultant as City deems appropriate. Upon completion of, or in the event of termination or suspens ion of this Agreement, all or iginal Data and Documents, including computer files containing data generated for the Services, notes, and other documents prepared in the course of providi ng the Services shall become City’s sole property and may be used, reused or otherwise disposed of by City without Consultant’s permission. Consultant may take and retain c opies of the written products as desired, but the written products shall not be the subject of a copyright application by Consultant.
D. Consultant’s covenants under this Se ction shall survive the expiration or termination of this Agreement.
7. Conflicts of Interest. Consultant and its officers , employees, associates and subcontractors, if any, shall comply with all c onflict of interest stat utes of the State of California applicable to Consultant’s Serv ices under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consult ant may perform similar Services for other clients, but Consultant and its officers, empl oyees, associates and subcontractors shall not, without the City Representat ive’s prior written approval, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.
8. Indemnification, Hold Ha rmless, and Duty to Defend.
A. Indemnities.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hol d harmless and indemnify City and its elected officials, -5-
2174192v6 City of MB Form Approved for Use 3/01/2021
officers, attorneys, agents, employees, des ignated volunteers, successors, assigns and those City agents serving as i ndependent contractors in t he role of City officials (collectively “Indemnitees”), from and agai nst any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature what soever, including fees of accountants, attorneys, or other professi onals and all costs associated t herewith and the payment of all consequential damages (collect ively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the l egal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the so le negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemni tees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consult ant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith. 2) Consultant shall pay all r equired taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted agains t City by reason of the independent contractor relations hip created by this Agreemen t. Consultant shall fully comply with the workers’ compensation la w regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable worker s’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s fa ilure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2). 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Sect ion from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s subcontractor , its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreem ent, including the Indemnitees’ active or passive negligence, except for Liabilities ar ising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
-6-
2174192v6 City of MB Form Approved for Use 3/01/2021
B. Workers’ Compensation Acts not Limi ting. Consultant’s indemnifications and obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ co mpensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. No Design Services. Contractor acknowledges that the Services to be provided pursuant to this Agreement do not require the services of a “design professional,” as the term is defined in California Civil Code Section 2782.8(c), and that therefore the provisions of California Civil Code Section 2782.8 do not apply to this Agreement.
E. Survival of Terms. Consultant’s i ndemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
9. Insurance.
A. Minimum Scope and Limits of Insuranc e. Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insu rance with a minimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or loca tion. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its m anagers, affiliates, employ ees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insuranc e for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $2,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehi cles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy required under subparagraph A.1) of this Section. 3) Workers’ Compensation Insuranc e as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required, but Consultant shall execute a declaration that it has no employees. -7-
2174192v6 City of MB Form Approved for Use 3/01/2021
4) Professional Liability/Errors and Omissions Insurance with minimum limits of $2,000,000.00 per claim and in aggregate.
B. Acceptability of Insurers. The insu rance policies required under this Section shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self- insurance shall not be considered to comply with the insurance requirements under this Section.
C. Additional Insured. The commercia l general and automobile liability policies shall contain an endorsement naming City, and its elect ed and appointed officials, officers, employees, agents and volunteers as addi tional insureds. This provision shall also apply to any excess/umbrella liability policies.
D. Primary and Non-Contributing. The insurance policies required under this Section shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self -insurance maintained by City, its elected and appointed officials, officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
E. Consultant’s Waiver of Subrogation. The insurance policies required under this Section shall not prohi bit Consultant and Consultant’s employees, agents or subcontractors from waiving t he right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
F. Deductibles and Self-Insured Retenti ons. Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Co verage. Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Section during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be e ndorsed to state that should the issuing insurer cancel the policy before the expirati on date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Section is canceled or reduced in coverage or limits, Consultant shall, within two Business Days of notice from the insurer, phone, fax or notif y City via certified mail, retu rn receipt requested, of the cancellation of or changes to the policy.
H. City Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Section in full force and effect during the term of this Agreement, or in the event any of C onsultant’s policies do not comply with the requirements under this Section, City may ei ther immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consul tant’s expense, the premium thereon. -8-
2174192v6 City of MB Form Approved for Use 3/01/2021
Consultant shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
I. Evidence of Insurance. Prior to the performance of Services under this Agreement, Consultant shall furnish City’s Risk Manager with a certificate or certificates of insurance and all original endorsement s evidencing and effecting the coverages required under this Section. The endorsements are subject to City’s approval. Consultant may provide complete, certified copies of all required insurance policies to City.
Consultant shall maintain current endorse ments on file with City’s Risk Manager.
Consultant shall provide proof to City’s Risk Manager that insurance policies expiring during the term of this Agreement have be en renewed or replaced with other policies providing at least the same coverage. Consul tant shall furnish such proof at least two weeks prior to the expiration of the coverages.
J. Indemnity Requirement s not Limiting. Procurement of insurance by Consultant shall not be construed as a limitati on of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under Section 8 of this Agreement.
K. Broader Coverage/Hig her Limits. If Consultant maintains broader coverage and/or higher limits than the minimums required above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
L. Subcontractor Insurance Requirements. Consultant shall require each of its subcontractors that perform Services u nder this Agreement to maintain insurance coverage that meets all of the requirements of this Section.
10. Mutual Cooperation.
A. City’s Cooperation. Cit y shall provide Consultant with all pertinent Data, documents and other requested in formation as is reasonably available for Consultant’s proper performance of the Services required under this Agreement.
B. Consultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
11. Records and Inspections. Consultant shall maintain complete and accurate records with respect to time, costs, expenses, receipts, correspondence, and other such information required by City that relate to the performance of the Services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to City, its designees and r epresentatives at reasonable times, and shall allow City to examine and audit the books and records, to ma ke transcripts therefrom as necessary, and to inspect all work, data, documents, pr oceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three years after receipt of final payment. -9-
2174192v6 City of MB Form Approved for Use 3/01/2021
12. Termination of Agreement.
A. Right to Terminate. Ci ty may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least five calendar days before the termination is to be effective. Consultant may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to City at least 60 calendar days before the termination is to be effective.
B. Obligations upon Termination. Consul tant shall cease all work under this Agreement on or before the ef fective date of termination specified in the notice of termination. In the event of City’s termination of this Agreement due to no fault or failure of performance by Consultant, City shall pay Consultant based on the percentage of work satisfactorily performed up to the effective date of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the Services required by this Agreement. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation.
13. Force Majeure. Consultant shall not be liabl e for any failure to perform its obligations under this Agreement if Consultant presents acceptable evidence, in City’s sole judgment, that such failure was due to acts of God, em bargoes, inability to obtain labor or materials or reasonable substitute s for labor or materials, governmental restrictions, governmental regulations, governm ental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
14. Default.
A. Consultant’s failure to comply with the provisions of this Agreement shall constitute a default. In the ev ent that Consultant is in de fault for cause under the terms of this Agreement, City shall have no ob ligation or duty to continue compensating Consultant for any work performed after the date of default.
B. In addition to the right to termi nate pursuant to Sect ion 12, if the City Manager determines that Consultant is in def ault in the performance of any of the terms or conditions of this Agreement, City shall se rve Consultant with written notice of the default. Consultant shall have ten calendar da ys after service upon it of the notice in which to cure the default by rendering a sati sfactory performance. In the event that Consultant fails to cure its default within su ch period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agr eement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
15. Notices. Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on pers onal delivery, (b) on confirmed delivery by courier service during Consultant’s and City ’s regular business hours, or (c) three -10-
2174192v6 City of MB Form Approved for Use 3/01/2021
Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
TO CITY: TO CONSULTANT:
City of Manhattan Beach Z&K Consultants, Inc.
Attn: Public Works Director Attn: Crystal Fraire
3621 Bell Avenue 473 East Carnegie Avenue
Manhattan Beach, California 90266 San Bernardino, CA 92408
COPY TO CITY ATTORNEY:
City of Manhattan Beach
Attn: City Attorney
1400 Highland Avenue
Manhattan Beach, CA 90266
16. Non-Discrimination and E qual Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical conditi on, genetic information, se xual orientation or other basis prohibited by law. Consultant will take affirma tive action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, religious cr eed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information or sexual orientation.
17. Prohibition of Assi gnment and Delegation. Consultant shall not assign any of its rights or delegate any of it s duties under this Agreement, ei ther in whole or in part, without City’s prior written consent. City’s consent to an assignment of rights under this Agreement shall not rel ease Consultant from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this Section, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obl igations, or liabilities in or arising from this Agreement to any person or entity, whet her by operation of law or other wise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
18. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
19. Waiver. No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, -11-
2174192v6 City of MB Form Approved for Use 3/01/2021
any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the Party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
20. Final Payment Accepta nce Constitutes Release. The acceptance by Consultant of the final pay ment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s work or services. Acceptance of payment shall be any negotiation of City’s check or the failu re to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a re lease of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work perfo rmed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
21. Corrections. In addition to the above indemnification obligations, Consultant shall correct, at its expense, all errors in the work which may be disclosed during City’s review of Consultant’s report or pl ans. Should Consultant fail to make such correction in a reasonably timely manner, such correction ma y be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction from any retention amount held by City or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction.
22. Non-Appropriation of Funds. Payments to be made to Consultant by City for services performed within the current fiscal y ear are within the current fiscal budget and within an available, unexhaust ed fund. In the event t hat City does not appropriate sufficient funds for payment of Consultant’s services beyond the current fiscal year, this Agreement shall cover payment for Consultant’s services only to the conclusion of the last fiscal year in which City appropriate s sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
23. Exhibits. Exhibits A , B, and C constitute a part of this Agreement and are incorporated into this Agreement by this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, or between a provision of this Agreement and a provision of Consultant’s proposal, the provisions of this Agreement shall control.
24. Entire Agreement and Modification of Agreement. This Agreement and all exhibits referred to in this Agreement c onstitute the final, co mplete and exclusive statement of the terms of the agreement between the Partie s pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except -12-
2174192v6 City of MB Form Approved for Use 3/01/2021
those expressly set forth in this Agreem ent. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by both Parties.
25. Headings. The headings in this Agreement ar e included solely for convenience of reference and shall not affect the interpreta tion of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
26. Word Usage. Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
27. Time of the Essence. Time is of the essence in re spect to all provisions of this Agreement that specify a time for performance; provided, ho wever, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
28. Business Days. “Business days” means days Manhattan Beach City Hall is open for business.
29. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be governed by and construed in accordance with the laws of the St ate of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agr eement. Any dispute th at arises under or relates to this Agreement (whether contract, to rt or both) shall be resolved in a superior court with geographic jurisdiction over the City of Manhattan Beach.
30. Attorneys’ Fees. In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract , tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover all attorneys’ fees, experts’ fees, and other costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.
31. Severability. If a court of competent jurisd iction holds any provision of this Agreement to be illegal, invalid or unenforc eable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
32. Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument.
33. Corporate Authority. Each person executing this Agreement on behalf of his or her Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
-13-
2174192v6 City of MB Form Approved for Use 3/01/2021
[SIGNATURE PAGE FOLLOWS]
-14-
2174192v6 City of MB Form Approved for Use 3/01/2021
The Parties, through thei r duly authorized representatives are signing this Agreement on the date stated in the introductory clause.
City:
City of Manhattan Beach,
a California municipal corporation
By:
Name: Bruce Moe
Title: City Manager
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO FISCAL IMPACT:
By:
Name: Steve S. Charelian
Title: Finance Director
APPROVED AS TO CONTENT:
By:
Name: Erick Lee
Title: Public Works Director
Consultant:
Z&K Consultants, Inc.,
a California Corporation
By:
Name: Crystal Fraire
Title: President
By:
Name: Zack Faqih
Title: Vice President
PROOF OF AUTHORITY TO BIND
CONTRACTING PARTY REQUIRED
A-1
2174192v6 City of MB Form Approved for Use 3/1/21
EXHIBIT A
SCOPE OF SERVICES
SCOPE OF SERVICES
The Inspection Services Team’s (team) relevant experience allows them to provide overall administration of the construction process based on their unique ability to fully understand the construction process, work proactively to identify problems early, and to mitigate each risk before it affects the project performance goals. Z&K proactively serves as the project’s administrator and provides consistent coordination between all project stakeholders including the City, Design Engineer, and construction contractor and subcontractors. Z&K has thoroughly reviewed the Request for Proposal (RFP) and confirmed the team will provide all scope of work tasks as outlined in the RFP scope of services to ensure the success of the City of Manhattan Beach’s Project. Z&K acknowledges the ability to meet potential project requirements listed under the scope of services. The Z&K Team, at a minimum, will perform the following:
Construction Inspection Services
1. Possession of a vehicle for travel related to the Project. Show proof of valid California driver’s license, and insurance. For immediate contact by the City, the Consultant Inspector must possess a mobile phone and digital camera and shall provide digital images of the Project to the City of Manhattan Beach in “jpeg” | The inspectors will be on on‐site at all times required by the contract, properly equipped with a company vehicle, valid auto insurance, a California driver’s license, and a mobile phone reachable by the City.
2. Working normal hours are from 7:30 a.m. to 4:30 p.m. with a 1‐hour lunch break | The assigned Z&K Inspector is committed to provide their services at all times required by the contract.
3. Reviewing the specifications thoroughly prior to the pre‐construction meeting and throughout the Project | The team is aware that prompt review of the project plans, specifications, and quantities, and alternative construction methods allow for cost and schedule savings. Upon notice‐ to‐proceed (NTP), the team will conduct a thorough review that will focus on anticipating issues in the field and resolve them through fast and flexible problem solving. This approach will result in timely completion of the work, claims avoidance, and the reduction of public inconvenience. Throughout the project, the inspectors will review plans, specifications, contract documents, plans, and permits. Inspectors will monitor and enforce construction noticing requirements and verify that all work in place is compliant with the project plans and specifications, as well as any Traffic Control, Cal‐OSHA, Outside Agency Permits, Standard Plans, and other public right‐of‐way requirements needed for the project. The team will ensure that the Contractor is aware of all existing underground utilities by ensuring that Dig Alert tickets are current and up to date prior to excavation. They will keep track of hazardous and non‐hazardous and conflicting utilities during regular progress meetings. Additionally, the consultant inspector will communicate with utilities early since various of utilities may need to be adjusted by the Owner and require utility coordination.
4. Establishing effective communications with the Contractor, other agencies, utilities, business, and property owners | The inspector will assist the City in forming and maintaining good relations with the Contractor, City Staff, business/property owners, and the general public. Residents and businesses in surrounding neighborhood will be well informed by providing community outreach and a contact person to manage public relations for the duration of the project. At a minimum, the team will establish and manage a construction 24‐hour hotline (toll free number), and email address for project stakeholders, property owners, interested parties, and the general public to call with construction issues and concerns. All calls and public complaints will be
A-2
2174192v6 City of MB Form Approved for Use 3/1/21
documented and investigated. The inspector will manage and track public inquiries for the Contractor and for the City and will advise of any concerns and findings.
5. Attending the weekly construction meetings | Z&K will attend the weekly construction meetings with City representatives, contractors, and other agencies related to the project. At each weekly meeting, all ongoing issues will be reviewed and discussed. An agenda shall include items such as safety, old business, updated progress of the work, request for information (RFIs), submittals, testing and inspection reports, non‐ conformance notices, contract issues, procedures, environmental monitoring, change orders (COs), look‐ahead schedule for upcoming work, pay requests, and so forth.
Unresolved issues will be carried over to the next week’s meeting until a final resolution is obtained.
6. Performing project oversight for the monitoring of traffic control, the Project scope of work, damage to infrastructure, and replacement of infrastructure to City standards.
During the course of inspection and monitoring of the work, if the Consultant observes an unsafe situation, they shall notify the Contractor. If the Contractor refuses to comply, the Consultant shall notify the City and Cal/OSHA, as appropriate | Throughout the project, the inspectors will review contract documents, plans, and permits. Inspectors will monitor and enforce construction noticing requirements. The Inspectors will use their expertise to provide field conflict resolutions. The Inspectors’ primary duties will be to inspect and verify all work in place meets the requirements of the contract plans and specifications, traffic control plans, shop drawings, change orders, and O&M manuals as well as maintenance of project documentation. The Construction Inspector will perform project oversight for the monitoring of damage to existing infrastructure and replacement of infrastructure to City standards. Any damage will be properly documented with photos.
7. Ensuring compliance with the Specifications, and other requirements, such as, but not limited to, the Contract, Traffic Control, Cal/OSHA Standards, Contract Change Orders, Permits, Standard Plans, checking line, grade size, elevation, and location of improvements. | The consultant has carefully selected this "A‐Team" and committed the most qualified Inspector for the duration of the contract to deliver a successful project, including full‐time and part‐time inspection. The Z&K Inspector has the knowledge, skill, and experience to inspect all the anticipated construction operations for this contract and will be on site daily to monitor and document daily progress of the contractor and verify that all work in place is compliant with the project plans, specifications, and contract, as well as any Traffic Control, Cal/OSHA Standards, contract change orders, permits, ASTM Standards, and other public right‐of‐way requirements needed for the project.
8. Keeping daily diaries (log), filling out incident (accident) reports, and taking pictures of the project. Document all Contractor delays, reasons for delay, length of time for delay, and phases of work. A daily inspection report identifying work done by the Contractor shall be submitted to the City’s Project Manager on the next business day for review and filing. | The daily reports will be submitted to the City on a daily basis. The Construction Inspector will prepare and present the “Weekly Statement of Working Days” report to the City and Contractor. This statement will conform to Caltrans Form CEM‐2701 or form approved by the City. The team will prepare an incident log and will complete prompt and thorough incident/accident reports. Any incidents will be discussed at the weekly meeting with the team. Z&K will immediately work with the Contractor to ensure that the proper procedures are implemented. The inspector will discuss a plan of action for the future to mitigate the risk of another incident. The Z&K Team will review and monitor the Contractor’s schedule, in addition to a master project schedule to include all completed and scheduled construction work, as well as any delays in construction or working days lost to weather or other unexpected conditions. Z&K will regularly update this schedule to reflect construction progress and provide updates on anticipated closure, detours, etc. The Team will also provide updates to the City on any other pertinent project information affecting the construction schedule. The Z&K Team
A-3
2174192v6 City of MB Form Approved for Use 3/1/21
will provide ongoing coordination with public utilities to resolve any construction questions or conflicts, and to avoid any potential delays or additional costs to the project. Any conflicts with utilities will be reported to the utility company and Z&K will work to coordinate the relocation or removal of the utility. The resolution will be reported to the City.
9. Measuring and tabulating contract quantities. Reviewing the Contractor’s invoices, verifying completed work and approving all quantities. | Prior to the Contractor submitting the invoice, the Inspector will review the quantities with the Contractor.
The inspectors keep an independent log of measurement and tabulated quantities in the field. The inspector compare the Inspector’s quantities with the Contractor’s quantities to ensure accurate invoices. Z&K brings a detailed understanding of the City processes for administering Contractor payment per the City’s standards & procedures.
The team will work closely under the direction of the City and with the contractor to verify that the contractor’s payments are processed, provide recommendations, and ensure they are executed promptly by the contract documents and City’s procedures.
Z&K will reconcile the work done with the pay requests. Z&K will work with the Contractor on required corrections to the pay requests and ensure that they are in the format and forms required by the City.
The pay requests will be submitted to the City with a statement that they have been reviewed. Z&K will keep accounts of all pay requests including amounts retained, dates submitted, dates paid, actual payments, changes in contract amounts, and any other pertinent information.
10. Monitoring extra work and providing supporting documentation on the personnel and equipment that is involved with any extra work performed by the Contractor.
Determining whether the work of the Contractor is being performed in accordance with the requirements of the contract documents, and endeavoring to guard the City against defects and deficiencies in such work. | Z&K works proactively to eliminate or reduce project impacts from potential change orders. Z&K will provide first‐line management of change order administration including review and evaluation of change order requests; independent estimates; project mitigation such as possible alternatives and negotiation as the City’s advocate; written approval from the City’s Project Manager prior to approval of any extra work; investigation and inspection of site conditions that differ from those described in the contract documents; schedule impact and analysis and verification; recommendations to the project Owner on acceptance; impact mitigation; review of submittals in support, and recommendation for resolution, of claims and disputes; and verification of costs.
Z&K will continuously prepare independent cost estimate change orders and schedule analysis of work to ensure that all change orders are of technical merit prior to execution. The Inspector will monitor extra work closely. The Construction Inspector will perform on‐going evaluation of the Contractor’s daily performance throughout the project to address any deficiencies as they occur and avoid any potential claims. If claims arise, the Inspector will work with the City and Contractor to find the best solution to resolve any claims in a timely manner.
11. Identifying and reporting on potential Contractor claims, and recommending resolution. | The Construction Inspector will perform on‐going evaluation of the Contractor’s daily performance throughout the project to address any deficiencies as they occur and avoid any potential claims. If claims arise, the Inspector will work with the City and Contractor to find the best solution to resolve any claims in a timely manner. The Z&K Inspection staff brings a detailed understanding of the City processes for administering Contract Change Orders per City’s standards & procedures. We will work closely under the direction of the City’s Construction Manager with the contractor to verify that change orders are processed and executed promptly by the contract documents and City’s procedures. Inspectors will verify all work performed under time and materials, including equipment, contractor crew, and field measurements quantities.
A-4
2174192v6 City of MB Form Approved for Use 3/1/21
12. Preparing a list of items for correction (punch list) and preparing redlined as‐built plans | The Inspector will take a proactive approach at processing close‐out documentation by conducting a project walk‐through and preparing a final punch list of items, which typically include guarantees/warranties, subcontractor liens, retention, and final acceptance/certificates of completion, orderly transfer of records and documents, resolution of outstanding issues, final payment preparation and processing along with final acceptance or record drawings.
Z&K will verify the completion of the final punch list when the contractor has certified and demonstrated the work is substantially complete. We will prepare redline as‐built plans. Z&K will conduct a final inspection and walk‐through including City staff, Contractor, maintenance/service personnel, and project architect/design consultant, and applicable agencies.
13. Preparing status reports for project close‐out and all applicable documents as a “closeout” file| Upon completion of the project and following the final inspection and walkthrough, Z&K will provide the City with both hard and electronic copies of project documentation, including a report stating that the installation of all improvements required by the project have been completed in accordance with the plans and specifications. Z&K will calculate the amount of final payment due to the prime Contractor and prepare the proposed final estimate. Z&K will also review and process the release of retention. Z&K will obtain evidence of certification of the release of all liens and stop notices. Z&K will obtain certification of delivery of record drawings to the City and design engineer. Z&K will advise the City when the Notice of Completion (NOC) should be filed. The Team will prepare a status report for project close‐out and provide the “close‐out” file to the City.
14. Performing other related duties as required | The Construction Inspector will perform other related duties as required for the successful completion of the Project.
ORGANIZATIONAL CHART
A-5
2174192v6 City of MB Form Approved for Use 3/1/21
Z&K has carefully selected this "A‐Team" and has committed the most qualified staff for the duration of the contract. The project team is committed 100% to this contract and all proposed personnel will be available to perform the requested services as required by the City.
B-1
2174192v6 City of MB Form Approved for Use 3/1/21
EXHIBIT B
APPROVED FEE SCHEDULE
Base Bid Schedule
TASKS Senior Inspector Hours Senior Inspector Fees
($128/hr)
Inspection Services (40
Working Days)
320 $40,960
Total 320 $40,960
Additive Bid Schedule A
TASKS Senior Inspector Hours Senior Inspector Fees
($128/hr)
Inspection Services (5
Working Days)
40 $5,120
Total 40 $5,120
Additive Bid Schedule D
TASKS Senior Inspector Hours Senior Inspector Fees
($128/hr)
Inspection Services (3
Working Days)
24 $3,072
Total 24 $3,072
Additive Bid Schedule E
TASKS Senior Inspector Hours Senior Inspector Fees
($128/hr)
Inspection Services (3
Working Days)
24 $3,072
Total 24 $3,072
Total Fees: Not-to-Exceed $52,224
2174192v4 City of MB Form Approved for Use 3/1/2021
EXHIBIT C
TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS
1. This Agreement calls for services that, in whole or in part, constitute “public works” as defined in Division 2, Part 7, Chapter 1 (co mmencing with Section 1720) of the California Labor Code (“Chapt er 1”). Further, Contractor acknowledges that this Agreement is subject to (a) Chapter 1 and (b ) the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. Therefore, as to those Services that are “public works”, Contractor shall comply with and be bound by all the terms, rules and regulations descri bed in 1(a) and 1(b) as though set forth in full herein.
2. California law requires the inclusi on of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 above.
3. Contractor shall be regi stered with the Department of Industrial Relations in accordance with California Labor Code Sect ion 1725.5, and has provided proof of registration to City prior to the Effective Date of this Agreement. Contractor shall not perform work with any subcontractor that is not registered with DIR pursuant to Section 1725.5. Contractor and subcont ractors shall maintain their registration with the DIR in effect throughout the duration of this Agreement. If the Contractor or any subcontractor ceases to be registered with DIR at any time during the duration of the project, Contractor shall immediately notify City.
4. Pursuant to Labor Code Section 1771.4, Contractor’s Services are subject to compliance monitoring and enforcement by DIR. Contractor shall post job site notices, as prescribed by DIR regulations.
5. Pursuant to Labor Code Section 1773.2, c opies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made availabl e to any interested party on request. Contractor acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Contract or shall post such rates at each job site covered by this Agreement.
6. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to City, forfeit $200.00 for each calendar day , or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pur suant to this Agreement by Contractor or by any subcontractor.
2174192v4 City of MB Form Approved for Use 3/1/2021
7. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writ ing under penalty of pe rjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records.
8. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq . concerning the employment of appr entices on public works projects.
Contractor shall be responsible for compli ance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the informati on submitted to any applicable apprenticeship program. Within 60 days a fter concluding work pursuant to this Agreement, Contractor and each of its subcont ractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.
9. The Contractor shall not perform Work with any Subcontractor that has been debarred or suspended pursuant to Califo rnia Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works.
The Contractor and Subcontractors shall not be debarred or suspended throughout the duration of this Contract pursuant to Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. If the Contractor or any subcontractor becomes debarred or suspended during the duration of the project, the Contractor shall immediately notify City.
10. Contractor acknowled ges that eight hours labor constitutes a legal day’s work. Contractor shall comply wit h and be bound by Labor Code Section 1810.
Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work ex cess hours. The Cont ractor shall, as a penalty to City, forfeit $25.00 for each work er employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in vi olation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.
11. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows:
2174192v4 City of MB Form Approved for Use 3/1/2021
“I am aware of the prov isions of Section 3700 of the Labor Code which require every employer to be insu red against liability for workers’ compensation or to undertake self-i nsurance in accordance with the provisions of that co de, and I will comply with such provisions before commencing the performance of the work of this contract.”
12. For every subcontractor who will perfo rm work on the proj ect, Contractor shall be responsible for such subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Contractor shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her work ers the specified prevailing rate of wages.
Contractor shall diligently take corrective action to halt or rectify any failure.
13. To the maximum extent permitted by law, Contractor shall indemnify, hold harmless and defend (at Contractor’s expense with counsel reasonably acceptable to City) City, its officials, officers, employees, agents and independent contractors serving in the role of City officials, and volunteer s from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any per son or entity (includi ng Contractor, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agr eement, including without limitation the payment of all consequential damages, attorneys’ fees, and other related costs and expenses. All duties of Contract or under this Section shall survive the termination of the Agreement.