Approved for Use 3/1/2021
12100-0001\2186390v9.doc City of MB Form
DESIGN SERVICES AGREEMENT
This Design Services Agreement (“Agreement”) is between the City of Manhattan Beach, a California muni cipal corporation (“City”) and CWE, a California corporation (“Consultant”). The date this Agreement is executed by the City Manager shall be the date this Agreement is effective (“Effective Date”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. City issued Request for Proposals No. E1277 -22S on February 15, 2023 , titled “Design Services for Future Storm Drain Project.” Consultant submitted a proposal dated March 29, 2023 in response to the RFP.
B. City desires to use the services of Consultant as an independent contractor to provide the on-call design services described in the RFP C. Consultant represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
D. City desires to r etain Consultant 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 shall perform the services described in the Scope of Services (the “Services”) for Design Services, 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 design ated in writing by the City Manager (the “City Representative”). For the purposes of this Agreement, the Consultant Representative shall be Vik Bapna, Principal (the “Consultant Representative”). The Consultant Representative shall directly manage Consul tant’s Services under this Agreement. Consultant shall not change the Consultant Representative without City’s prior written consent.
C. On-Call Services. Consultant acknowledges that (i) this Agreement is for on-call services; (ii) Consultant is one of thr ee firms selected by City to provide the DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -2- Approved for Use 3/1/2021
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Services; (iii) City is under no obligation to assign any Services to Consultant pursuant to this Agreement; and (iv) any assignments to Consultant pursuant this Agreement may not include all of the Services listed in the Scope of Services.
D. Assignment of Task . Assignments will be made via Task Order. Prior to issuing a Task Order, City will request a project specific proposal from Consultant. If City accepts the proposal, City will issue the Task Order, assigning th e task to Consultant.
Consultant shall not commence performance of work or services until issued a Task Order by City.
E. Time for Performance . Consultant shall commence the Services on the Effective Date and shall perform all Services by the deadline establ ished by the City Representative or, if no deadline is established, with reasonable diligence.
F. Standard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.
G. 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.
H. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes, regulations and requirements.
I. 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.
2. Term of Agreement. The term of this Agreement shall be from the Effective Date through June 30 , 2026, unless sooner terminated as provided in Section 12 of this Agreement or extended. The City Manager or his/her designee may e xtend the term of the Agreement in writing for up to two additional one-year terms or such other term not to exceed two years from the date of termination, pursuant to the same terms and conditions of this Agreement. If not renewed prior to the terminatio n 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 $150,000 (the “Maximum C ompensation”) for such Services, or such lesser amount as may be specified in the approved Task Order(s) issued pursuant to paragraph D of Section 1 (the DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -3- Approved for Use 3/1/2021
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“Maximum Compensation”). The City Manager may authorize cumulative increases for additional work up to twenty percent (20%) of the Agreement . Any additional work in excess of this amount shall be approved by the City Council 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 Representative, if applicable, and the Consultant Representative authorize such services or expenses in writing prior to Consultant’s performance of those services or incurrence of additional exp enses. Any additional services authorized by the City Council, or (where authorized) the City Manager shall be 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 Katherine Doherty, City Engineer, at [email protected]. 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 undisputed invoice amounts within 30 calendar days after receipt up to the Maximum Compensation set forth in Section 3 of this Agreement. City does not pay interest on past due amounts. City shall not withhold federal payroll, state payroll or other taxe s, or other similar deductions, from payments made to Consultant. Notwithstanding the preceding sentence, if Consultant is a nonresident of California, City will withhold the amount required by the Franchise Tax Board pursuant to Revenue and Taxation Code Section 18662 and applicable regulations.
C. Audit of Records. Consultant shall make all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement available during Consultant’s regular wo rking 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 Consultant’s employees, except as set forth in DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -4- Approved for Use 3/1/2021
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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, models, photographs, discussion, or other information (collectively “Data and Documents”) developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed or released by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. Consultant, 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, l etters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall no t 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 for 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 respect to any project or property lo cated 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 Documents 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 suspension of this Agreement, all original Data and Doc uments, including computer files containing Data and Documents generated for the Services, notes, and other documents prepared in the course of providing the Services shall become City’s sole property and may be used, reused or otherwise disposed of by Cit y without Consultant’s permission. Consultant may take and retain copies 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 Section shall surviv e 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 conflict of interest statutes of the State of California applicable to Consultan t’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090.
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During the term of this Agreement, Consultant may perform similar Services for other clients, but Consultant and its offic ers, employees, associates and subcontractors shall not, without the City Representative’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 Harmless, and Duty to Defend.
A. Indemnity for Design Professional Services. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, protect, i ndemnify, and hold harmless City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees ”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith, and reimbursement of attorney’s fees and costs of defense (collectively “Liabilities”), whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to, in whole or in part, th e negligence, recklessness or willful misconduct of Consultant, its officers, agents, servants, employees, subcontra ctors, material men, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear th e legal liability thereof) in the performance of design professional services under this Agreement by a “design professional,” as the term is defined under California Civil Code Section 2782.8(c).
B. Other Indemnities.
1) Other than in the performance of desi gn professional services, and to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify the Indemnitees from and against any and all damages, costs, expenses, liabilities, claims, demands, c auses of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “ Claims”), 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 legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Claims ari sing from the sole 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 Claim with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -6- Approved for Use 3/1/2021
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defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith. 2) Consultant shall pay all required 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 against Cit y by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ 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 failure to promptly pay t o City any reimbursement or indemnification arising under this subparagraph B.2). 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section 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 indemnities, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Claims 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’s subcontractor, its officers, agents, servants, employees, subcontractors, materia lmen, 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 Agreement, including the Indemnitees’ active or passive negli gence, except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision or by the agreement of the Parties.
C. Workers’ Compensation Acts not Limiting . Consultant’s obligations under this Section, o r any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
D. 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 t o 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, Claims, tax, assessment, penalty or interest asserted against City.
E. Survival of Terms . The indemnification in this Section shall survive the expiration or termination of this Agreement.
9. Insurance.
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A. Minimum Scope and Limits of Insurance . 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 Insurance with a minimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate l imit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insurance 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 propert y damage. If Consultant does not use any owned, non -owned or hired vehicles 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 Insurance 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. 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 insurance 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 commercial general and automobile liability policies shall contain an endorsement naming City, and its elected and appointed officials, officers, employees, agents and volunteers as additional 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 prohibit Consultant and Consultant’s employees, agents or subcontractors from waiving the r ight of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
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F. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by City. At City’s option, Consult ant 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 Coverage . 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 endorsed to state that should the issuing insurer cancel the policy before the expiration 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 notify City via certified mail, return 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 Consultant’s policies do not comply with the requirements under this Section, City may either 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 Consultant’s expense, the premium thereon.
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 en dorsements 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 curren t endorsements 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 been renewed or replaced with other policies providing at least the same coverag e. Consultant shall furnish such proof at least two weeks prior to the expiration of the coverages.
J. Indemnity Requirements not Limiting . Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under Section 8 of this Agreement.
K. Broader Coverage/Higher 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.
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L. Subcontractor Insurance Requirements . Consultant shall re quire each of its subcontractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Section.
10. Mutual Cooperation.
A. City’s Cooperation. City shall provide Consultant with all pertinent Data, documents and other requested information 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 Consultan t’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 representatives at reasonable times, and shall allow City to examine and audit the books and records, to make transcripts therefrom as necessary, and to inspect all work, data, docu ments, proceedings 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.
12. Termination of Agreement.
A. Right to Terminate. City 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 . Consultant shall cease all work under this Agreement on or before the effective date of termina tion 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 effecti ve 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 re ason of such termination, including any claim for compensation.
13. Force Majeure. Consultant shall not be liable for any failure to perform its obligations under this Agreement if Consultant presents acceptable evidence, in City’s sole judgment, that such fa ilure was due to acts of God, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -10- Approved for Use 3/1/2021
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hostile governmental act ion, 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 eve nt that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default.
B. In addition to the right to terminate pursuant to Sect ion 12, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City shall serve Consultant with written notice of the default. Consultant shall have ten calendar days after serv ice upon it of the notice in which to cure the default by rendering a satisfactory performance. In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate t his Agreement 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 p ermitted under this Agreement shall be in writing and conclusively deemed effective: (a) on personal delivery, (b) on confirmed delivery by courier service during Consultant’s and City’s regular business hours, or (c) three 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 CWE
Attn: Katherine Doherty Attn: Vik Bapna
1400 Highland Avenue 1561 E. Oragethorpe Avenue Suite 240 Manhattan Beach, California 90266 Fullerton, California 92831
COPY TO CITY ATTORNEY:
City of Manhattan Beach
Attn: City Attorney
1400 Highland Avenue
Manhattan Beach, California 90266
16. Non-Discrimination and Equal 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 condition, genetic information, sexual orientation or other basis prohibited by law. Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -11- Approved for Use 3/1/2021
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employment, without regard to their race, color, religious creed, 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 Assignment and Delegation. Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without City’s prior written consent. City’s consent to an assignment of rights under this Agreement shall not release 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, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, 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, 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 Acceptance Constitutes Release. The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s work or services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and com petency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors 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 plans. Should Consultant fail to make such correction in a reasonably timely manner, such correction may 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 DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -12- Approved for Use 3/1/2021
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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 year are wi thin the current fiscal budget and within an available, unexhausted fund. In the event that 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 appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
23. Exhibits. Exhibits A and B 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 constitute the final, complete and exclusive statement of the terms of the agreement between the Parties 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 those expressly set forth in this Agreement. 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 are included solely for con venience of reference and shall not affect the interpretation 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 respect to all provisions of this Agreement that specify a time for performa nce; provided, however, 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 State 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 Agreement. Any dispute that arises under or DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -13- Approved for Use 3/1/2021
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relates to this Agreement (whether contract, tort or both) shall be resolved in a su perior 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 jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable 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.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 -14- Approved for Use 3/1/2021
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The Parties, t hrough their 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:
CWE,
a California corporation
By:
Name: Vik Bapna
Title: Principal/Chief Executive Officer
By:
Name: Jason Pereira
Title: Principal/Secretary
DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 12/6/2023
12/6/2023
A-1
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EXHIBIT A
SCOPE OF SERVICES
The Scope of Work may include, but is not limited to, the following tasks:
A. General
1) Provide full turnkey oversight of the project.
2) Attend meetings with City staff and their designated representatives. Prepare agendas for all meetings and distribute to City staff and other attendees at least one working-day prior to the scheduled meeting. All meetings will be held in the City's Engineering Office. If holding in-person meetings are not possible due to public health and safety protocol, the Consultant shall schedule and attend virtual project meetings on a virtual platform of the City's choice (e.g., Zoom).
Consultant shall update City staff at each progress meeting on the status of the project scope, schedule and budget. Consultant's Project Manager and other key staff (as determined by Consultant) shall assume attendance at the following meetings:
a. Kick-off Meeting – An initial kick-off meeting is to be scheduled within one week of receiving a Notice to Proceed. Prepare an initial preliminary and final design schedule for discussion with City staff at the project kick-off meeting.
b. Monthly Progress Meetings – Subsequent monthly progress meetings (assume seven monthly meetings excluding the kick-off meeting) for the duration of the project. Update the schedule originally presented at the kick-off meeting prior to each monthly meeting and discuss the current project status at those meetings;
c. Community Meetings – Two Community Meetings scheduled as part of Public Outreach activities.
d. Pre-Bid Meeting – Two Pre-bid meetings prior to construction; and e. City Council Meeting – If requested by City staff, Consultant shall attend one City Council meeting to present the project.
3) Prepare meeting notes for all meetings and distribute Draft copies for City staff review within five calendar days of the meeting date and allow seven calendar days for attendees to provide comments, if any. Incorporate appropriate comments received and finalize and distribute notes to all meeting attendees within five calendar days of receipt of comments.
4) Provide independent in-house quality control assurance/quality control (QA/QC) review of work products prior to submitting all interim and final deliverables to the DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 A-2
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City. Provide a constructability review prior to submitting 100% plans to the City.
Provide City staff with written documentation of completion of the required QA/QC reviews.
5) Coordinate with other agencies, utilities, and affected property owners related to this project as required to facilitate successful completion of required project tasks.
B. Public Outreach and Engagement
1) Present a recommended program for public outreach activities to achieve the following:
a. Acquaint residents, property owners, and businesses in the affected Project areas with the proposed project.
b. Communicate the long -term value received from the proposed improvements.
c. Receive public input on issues of importance and relative priorities. d. Gain public understanding, acceptance, and support of the proposed project.
e. Develop appropriate presentation materials and carry out an ongoing information dissemination program throughout the project's preliminary design phase. Prepare a project information sheet, mail it to area residents and businesses, and post it on select social media sites. f. Schedule and attend two community meetings to disseminate and discuss the above-noted information.
C. Utility and Agency Coordination
1) The Consultant shall prepare and mail preliminary utility notices on City letterhead to obtain maps and other documents to identify existing utility locations on the plans. The utility notices are as follows:
a. 1st Utility Notice - Preliminary Project Notice and Request As-built Maps; b. 2nd Utility Notice – Review and Identify Potential Conflict and Need to Relocate;
c. 3rd Utility Notice - Notice to Relocate; and
d. 4th Utility Notice – Final Notice to Relocate Immediately, if applicable. 2) The Consultant shall document via log sheet, update regularly, and call or meet the utility companies, as necessary, until a written response form is received from each potential conflicting utility. The Consultant shall coordinate with affected utility companies to depict any necessary utility modificatio ns. The City has contact information available for affected utilities if needed. It may be assumed that the DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 A-3
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affected utilities will prepare the detailed design for new or relocated utilities , and construction of the same will be the responsibility of the a ffected utility.
Coordination for any work affecting adjacent cities or other agencies, including plan checks, traffic control plans , and permit approvals , is considered part of the Consultant's work to address, thus allowing improvements to be constructed in a timely manner.
3) The Consultant shall coordinate with City staff and California Watershed Engineering staff (Consultant to the City of Manhattan Beach) to stay informed of the current status of the ongoing 28 th Street Storm Drain Re gional Infiltration Project, the TMDL HFCTTCD Project, and Dominguez Channel Infiltration Project.
D. Background Research, Surveying and Field Verification 1) Research and obtain available record drawings (inclusive of a ll utilities, communication, etc.) for facilities to be depicted on the plans. 2) Conduct detailed field visits to all applicable project sites to verify existing conditions and potential right -of-way issues. Note surface locations of existing utilities and open existing utility vaults/maintenance holes/valves to determine existing utilities' invert depths, where possible. Compare all field investigation findings with existing record drawings to identify possible conflicts. 3) Review the City's 2021 Storm Drain Master Plan and all relevant studies relating to the construction of prior Storm Drain improvements in the vicinity. 4) Obtain applicable topographic survey, survey ties, City benchmarks, basis for bearings and stationing, existing right-of-way (to be clearly depicted on the plans), City standards, and improvements within and adjacent to the project area. The Consultant shall provide all topographic and land surveying services to identify all features, objects, and critical control points required to prepar e the construction plans and other documents for this Project. Said surveying shall include sufficient adjacent areas as needed to join or match existing conditions. 5) Conduct field investigations to identify existing conditions in and around each project work area.
6) The Consultant shall keep a log of all documents obtained for the project.
E. Potholing
1) Consultant shall compile a list identifying potential locations of conflict between existing utilities and the proposed new Storm Drain Infrastructure. Consultant shall include a minimum $10,000 pot-holing budget to be utilized at the City's direction based on the Consultant's recommendations. The Consultant shall strategically pothole, or engage a construction service to pothole all potentially conflicting underground utilities to determine the location, depth for clearance, connection points, or conflicts with the proposed Storm Drain infrastructure.
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2) The Consultant shall submit to each utility company a preliminary set of plans that provide the location and elevation of the utility with the conflict areas clouded to show the utility companies the areas of conflict with the proposed improvements.
After completing that task, the potholing information and plan shall be submitted to the City.
3) Potholes in paved areas shall be repaired per City Standards. 4) It shall be the responsibility of the Consultant to notif y the Underground Service Alert (Dig-Alert) prior to the start of any subsurface exploration work. 5) The Consultant shall submit , for City Review, a traffic control plan and obtain a permit to operate and conduct any potholing within the public right -of-way. Any work that disrupts area parking shall be posted "No Parking" at least 72 hours in advance of any planned construction activities.
F. Geotechnical
1) The soil condition in Manhattan Beach is primarily collapsible sandy loam material.
The Consultant must conduct the appropriate geotechnical investigation to adequately convey the information in the project plans and specifications so bidders can provide a fair and accurate bid for the conditions they will encounter during construction.
2) As part of the geotec hnical investigation, it is prudent to conduct the following potential site contaminant tests for each location if the area in that vicinity has been determined to contain oil-related industry in the past. Potential soil contaminant tests include:
a. Tph-cc
b. VOC
c. Organic lead
d. California Title 22 metals
3) Other geotechnical design criteria shall be provided as necessary by the Consultant.
4) The Consultant shall study the geotechnical testing results and establish the pertinent design properties.
G. Hydrology and Hydraulics Feasibility Study - Preliminary Design Phase 1) The Consultant shall submit a Draft Storm Water Hydrology & Hydraulics (H&H) Feasibility Study in PDF format, which includes an assessment of the current storm drain system tributary. The H&H Study shall contain all pertinent recommendations for the completion of the Project Design Plans, including a discussion of design criteria, an outline of the proposed Technical Specifications, and a Preliminary DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 A-5
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Statement of Probable Construction Cost. Following review by City staff, incorporate applicable comments.
2) The Consultant shall provide calculations and maps showing predevelopment and post-development conditions after construction of the proposed storm drain line.
Consultant shall provide a comprehensive assessme nt of the current storm drain system tributary. The Consultant shall identify the specific catchment areas that contribute to any ponding and propose alternatives to redirect flow to a new storm drain line , if applicable . The d esign for a new storm drain line will follow all standards in accordance with the City of Manhattan Beach and Los Angeles County Flood Control District.
3) The Consultant shall collect all necessary data to complete the analysis. This task includes gathering data on precipitation levels, catchment area data, groundwater levels, and water quality. This data shall be collected through field measurements or by analyzing existing documentation.
4) Calculations shall be summarized in the report and submitted in PDF format and the most current WSPG file format. This task includes analyzing the data that has been collected to identify problem areas and supplemental mitigation measures.
The Consultant shall provide catchment areas and associated data in shapefile format for incorporation into the City's GIS system.
5) The Consultant shall submit a Final detailed H&H Feasibility Study, incorporating all City comments, including the methods , data collected, results, design alternatives, and conclusions. This report will be shared with pu blic stakeholders such as local government agencies and the general public.
H. Final Design Phase – Preparation of Construction Plans, Specifications and Estimates (PS&E)
1) Prepare design drawings for all storm drain infrastructure improvements identified in th e H&H Feasibility Study. Plans shall be prepared in the current AutoCAD format.
2) Utilize the City's standard title block on all plan sheets and comply with layout, notes, and specified formatting requirements. All plan sheets must use the City of Manhattan Beach's title block, which is available on the City's website or by clicking on the following link: http://www.citymb.info/departments/public- works/engineering-division/capital-improvement-project-working-documents. 3) The following "Declaration of Design Engineer of Record" must be included on the Cover Sheet of the plans:
Declaration of Design Engineer of Record
I hereby declare that the design of the improvements as shown on these plans complies with Professional Engineering standards and practices. As the Engineer in Responsible Charge of the design of these improvements, I DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 A-6
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assume full responsible charge for such design. The plan check is not a determination of the technical adequacy of the design of the improvements.
Such check does not; therefore relieve me of my responsibility for the design of these improvements.
I also hereby declare that I have compared these plans with all applicable ADA Title II requirements for disability access for this project and these plans are in full compliance with those requirements.
4) The Consultant shall record the pavement and base thicknesse s for all trenching work proposed on the project plans.
5) The plans must include bringing any abutting non-compliant ADA curb ramps into current compliance with customized design if necessary. Any improvements that touch a non -compliant ADA curb ramp must be upgraded to current compliance regardless of whether the adjoining street is resurfaced. 6) The Consultant shall prepare the entire project bid specifications in MS Word format using a City-provided frontend boilerplate template. Bid Specifications shall include all boilerplate, related exhibits, and necessary documents to comply with legal requirements and good professional practices. Prepare and include any applicable Special Provisions as well as all required Technical Specification sections and forms. Technical Specifications shall be prepared using six digit CSI (Construction Specification Institute) industry standard format. 7) Submit Draft plans to the City for review and comment at the 60%, 90%, and 100% completion stages along with Engineer’s Estimates of Probable Construction Costs for all line items, matching those in the Project Bid Schedule included in the specifications. The Consultant shall allow at least two (2) weeks for City review of each plan submittal. All submittals shall be in PDF electro nic format (PDF, MS Word or Excel, as appropriate).
8) Upon review and submittal of final corrections by the City (following review of the 100% Submittal package), the Consultant shall prepare a final PS&E package, including full size plans on mylar with engi neer’s signatures and stamps.
Consultant’s Engineer of Record will be required to sign and stamp every plan sheet. Consultant’s Engineer of Record will only be required to sign and stamp the Front Cover of the entire project bid specifications document (in clusive of City boilerplate customized to the specific project by the Consultant) as the responsible Engineer. The Consultant shall also provide the City with a:
a. Final set of plans in AutoCAD format (Latest Version) b. Final set of Bid Documents (Specifications) in MS Word Format; and c. Final Opinion of Probable Construction Cost (Engineer’s Estimate) in MS Excel format. All line items in the final Engineer’s Estimate shall correspond exactly with the Bid Items listed in the Project Bid Schedule.
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I. Construction Permits
1) The Consultant shall be responsible for applying for and obtaining all permits required for project construction including the following:
a. City of Manhattan Beach Encroachment permits for work at each site designated on the plans; Permit fees will be waived on all City permits; b. Los Angeles County Encroachment permits for all work tributary to Polliwog Park Retention Basin, or any other County owned property identified in the course of work on this project;
c. Any other required construction permits, wh ich may be identified by the Consultant during the Project Preliminary and/or Final Design Phases.
J. CEQA Compliance
1) It is the intent of the City to prepare any required CEQA documentation in -house (if a categorical exemption is warranted) or retain anothe r consultant (if an initial study and mitigated negative declaration is required). However, the consultant retained for any Future Storm Drain Projects design will be required to provide any pertinent project information to the City’s designated in -house or retained CEQA staff.
K. Bid Phase Assistance
The Consultant shall provide the following services during the project bid phase:
a. Assist the City in providing bid documents suitable for uploading onto PlanetBids’ website.
b. Attend two pre -bid meetings at the ti me and place designated in the bid documents;
c. Assist the City in drafting responses to provide clarification as part of any addenda issued.
d. Prepare a set of conformed plans and specifications prior to commencement of construction work;
e. No printing of hard copies of any final PS&E documents will be required.
L. Engineering Services During Construction
1) The Consultant shall provide the following services during the project construction phase:
a. Provide answers to design questions;
b. Review and accept or reject (as appropriate) shop drawing submittals; DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697 A-8
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c. Respond to Requests for Information (RFI’s) submitted by the construction contractor;
d. Provide up to four field visits and/or meetings at the jobsite during the construction phase to maintain awareness of the project work and to assure conformance with the contract documents; and
e. Provide supplemental documents for clarification or resolution of conflicts encountered during construction.
M. Preparation of Record Drawings
1) The Consultant shall provide record drawings of the fi nal constructed project pursuant to modifications made at the time of construction per the redlined comments provided by the City, Contractor and City’s retained Construction Manager or Inspector. The drawings shall be provided within 60 days of the receipt of all redlined comments. The final record drawing submittal shall include a complete set of record drawings on mylar sheets and in AutoCAD (Latest Version or Version __) format.
DocuSign Envelope ID: B8EBB948-34DE-49AB-8D1D-99832A97E697
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EXHIBIT B
APPROVED FEE SCHEDULE
HOURLY RATE SCHEDULE
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