PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is dated 2FWREHU 2022, (“Effective Date”) and is between the City of Manhattan Beach, a California munic ipal corporation (“Cit y”) and History Associates Incorporated, a Maryland corporation (“Consultant”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor to provide policy development, inventory and collection survey, and digitizing services.
B. 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.
C. City desires to retain Consultant 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 policy development, inventory and collection survey, and digitizing 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 designated in writing by the City Manager (the “City Representative”). For the purposes of this Agreement, the Consultant Representative shall be Beth Maser, President and CEO, History Associates Inc (the “Consultant Representative”). The Consultant Representative shall directly manage Consultant’s Services under this Agreement. Consultant shall not change 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 Services by the deadline established 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
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professionals under similar circumstances an d in a manner reasonably 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. Term of Agreement. The term of this Agreement shall be from the Effective Date through -XQH , 2023, unless sooner terminated as provided in Section 12 of this Agreement or extended.
Compensation.
$ 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 $175,000 (the “Maximum Compensation”) for such Services.
B. Expenses. The amount set forth in paragraph 3.A. above includes reimbursement for all expenditures incurred in the performance of this Agreement.
C. Unauthorized Services and Unanticipated Expenses. City will not pay for any services not specified in the Scope of Services, unless the City Council or the City Representative, if applicable, and the Consultant Representative authorize such services in writing prior to Consultant’s performance of those services or incurrence of additional expenses. 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. At the request of the Consultant, the City Council may, in writing, reimburse Consultant for an unanticipated expense at its actual cost. 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 Attn:
Eilen R. Stewart or Cultural Arts Manager, City Hall, 1400 Highland Ave, Manhattan Beach, CA 90266 or emailed to [email protected]. Each invoice shall
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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 taxes, 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 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 Consultant’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, discussion, or other information (collectively “Data”) 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 disclos ure. 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, letters 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 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 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 located within the City. City may, but has no obligation to, represent Consultant or be present at
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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 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 documents, designs, drawings, maps, models, computer files containing data generated for the Services, surveys, 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 City 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 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 conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consultant may perform similar Services for other clients, but Consultant and its officers, 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. Indemnities.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify 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, expenses, judgments, penalties, liens, and losses of any nature what soever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), in law or equity, whether actual,
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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 Liabilities arising 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 Liabilities 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 defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by 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 City 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 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 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 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 Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
B. Workers’ Compensation Acts not Limiting. 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’ 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.
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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 indemnities 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. Survival of Terms. Consultant’s indemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
9. Insurance.
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 limit 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 property 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.
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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, em ployees, 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 right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
F. Deductibles and Self-Insured Retentions. 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 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 endorsements 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.
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Consultant shall maintain current 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 coverage. 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.
L. Subcontractor Insurance Requirements. Consultant shall require 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 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 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, documents, 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
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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 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 liable 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, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental 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 event 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 Section 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 service 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 this 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 permitted 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:
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TO CITY: TO CONSULTANT:
City of Manhattan Beach History Associates Incorporated Attn: Parks & Recreation Dept. Attn: Beth Maser
1400 Highland Avenue 300 N. Stonestreet Avenue
Manhattan Beach, California 90266 Rockville, Maryland 20850 COPY TO CITY ATTORNEY:
City of Manhattan Beach
Attn: City Attorney
1400 Highland Avenue
Manhattan Beach, CA 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 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
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(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 competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors 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 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 within 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
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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 convenience 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 performance; 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 relates to this Agreement (whether contract, tort 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 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
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of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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The Parties, through 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: Mark Leyman
Title: Parks and Recreation Director
Consultant:
History Associates Incorporated,
a Maryland corporation
By:
Name: Beth Maser
Title: President and CEO HAI
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EXHIBIT A
SCOPE OF SERVICES
Phase I: Policy Development
An essential component of a museum is the solid definition of governance and associated policies for administrative oversight of the collection. These policies ensure the ongoing support and safety of the museum collections and serve as the foundation for establishing a responsibly managed and accessible collection. The Consultant will foster a collaborative process to develop guiding documents to support and define the governance and policy of the museum collections, serving as the fundamental groundwork for future activities to develop, preserve, and access the collection. These policies will also protect the valuable collection from potential damage or misuse.
Specific tasks in Phase I include but are not limited to:
x Develop a scope of collection statement (SOCS)
x Create and implement a deaccession plan
x Develop standard operating procedures (SOPS)
x Establish policies and procedures
x Review, consolidate, and update museum documentation records x Create a housekeeping plan
x Develop formal policies for access and use of collections x Develop and maintain a museum emergency operations plan (MEOP) x Clarify roles and responsibilities for security, fire protection, earthquake protection, and emergency preparedness
*** All tasks related to Phase I shall be completed no later than December 20, 2022.
Phase II: Inventory and Survey Collections
Survey and inventory approximately 1,550 objects and 165 LF of records using available museum documentation and MBHS records.
x Complete a survey spreadsheet at the box level, folder level, or item level, as appropriate, in Excel
x Examine materials and determine applicable disposition and identify non- collections material
x Conduct background research as necessary to understand the nature of the museum collections, their function, legal status, order, and the context of their creation and use
x Develop a processing plan to use for future archives work x Develop a cataloging manual to use for future object collections work Specific tasks in Phase II include but are not limited to:
x Survey collections
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x Identify potential backlog of collections in museum and other facilities x Maximize storage space
x Identify collection materials
x
x Confirm legal status of collections
x Evaluate efficacy of onsite exhibits
x HAI will also participate in an advisory capacity in the following tasks:
o Collections environment monitoring system
o Appropriate housekeeping needs and practices (create and implement a housekeeping plan)
o Updating workspace
o Creation of an isolated collections space outside of the beach cottage (Red House)
o Creation and implementation of an Integrated Pest Management Plan (IPM) o Improving security, fire protection, and earthquake protection measures *** All tasks related to Phase II shall be completed no later than March 14, 2023.
EXHIBIT B
APPROVED FEE SCHEDULE
The following hourly rates shall apply to any Services provided under this Agreement:
x Senior Archivist/Senior Collections Manager $120/hr x Archivist/Collections Manager $95/hr
2034384v3.doc City of MB Form
AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF MANHATTAN BEACH AND HISTORY ASSOCIATES INCORPORATED This First Amendment (“Amendment No. 1”) to that certain agreement by and between the City of Manhattan Beach, a California municipal corporation (“City”) and History Associates Incorporated, a Maryland corporation (“Consultant”) (collectively, the “Parties”) is hereby entered into as of June 6, 2023 (“Effective Date”).
RECITALS
A. On October 6, 2022, the City and Consultant entered into an agreement for professional services for the Consultant to provide policy development, inventory and collection survey, and digitizing services (“Agreement”).
B. The Parties now desire to amend the Agreement to modify the scope of services, extend the term, and increase the maximum compensation.
NOW, THEREFORE, in consideration of the Parties’ performance of the promises, covenants, and conditions stated herein, the Parties hereby agree as follows:
Section 1. Section 2 of the Agreement is hereby amended to extend the term of the Agreement through June 14, 2024, unless sooner terminated as provided in Section 12 of the Agreement.
Section 2. Section 3.A of the Agreement is hereby amended to increase the maximum compensation amount by $310,000, for a new maximum compensation of $ 485,000.
Section 3. Exhibit A (Scope of Work) of the Agreement is hereby amended to add the Exhibit A to this Amendment.
Section 4. Exhibit B (Approved Fee Schedule) of the Agreement is hereby replaced by Exhibit B to this Amendment.
Section 5. Except as specifically amended by this Amendment No. 1, all other provisions of the Agreement shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
2034384v3.doc City of MB Form
IN WITNESS THEREOF, the Parties hereto have executed this Amendment No. 1 on the day and year first shown above.
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: Mark Leyman
Title: Parks and Recreation Director
Consultant:
History Associates Incorporated,
a Maryland corporation
By:
Name: Beth Maser
Title: President and CEO HAI
2034384v3.doc City of MB Form
EXHIBIT A
SCOPE OF SERVICES – PHASE III
Phase III: Process, Catalog, and Rehouse Collections
HAI conducted an on-site survey and inventory of the Historical Collection during January and February 2023. During this time, the team compiled comprehensive inventories of the object collection and archival collection. The inventories provide brief descriptions of materials, measurements, and recommendations for disposition of materials. HAI also drafted a collection policy, processing manual, and cataloging manual to aid the next steps toward full control of the collections.
The next phase of the Action Plan - Phase III - includes processing, cataloging, and rehousing objects and archives in the collections in order to ensure continued safety and preservation of the items and enhance accessibility.
Specific tasks in Phase III include but are not limited to:
x Physically process the archival collection according to specifications detailed in the processing plan
o Archivists will physically sort the records into the hierarchy established in the processing plan, maintaining current physical groupings and original order of the material as much as possible and practical o The archivists will also identify material for weeding from the collection, including extensive duplicates and non-records. The archivists will not alter or destroy any weeded originals. Instead, the weeded material will be stored in clearly marked non-archival boxes for review and eventual disposition by the City and Historical Collection Committee (HCC).
x In conjunction with the arrangement of th e collection, HAI’s archivists will also rehouse the collection and implement basic pr eservation activities to improve the stability of the collection and ensure its long-term preservation, including rehousing all paper materials in the collection into archival folders and boxes, removing rusty or bulky fasteners, interleaving photographs with acid-free paper or replacing them in archival sleeves, and flattening and rehousing oversize materials into large flat boxes
x Properly house objects in preservation quality story containers to protect from dust, dirt, and provide support if moved.
x Determining the need for any follow-up conservation work. x Once the collection has been arranged and rehoused, HAI will enhance the intellectual control by cataloging materials in the City’s Proficio Elements content management system. The estimate for cataloged items includes:
o 700 objects, individually cataloged
o Approximately 155 linear feet (LF) of cataloged archival materials at box level (boxes containing loose materials) or folder level (boxes and drawers containing items in folders)
o Scope and content notes
2034384v3.doc City of MB Form
o Descriptions of each series and sub-series
o Container list detailing descriptive titl es, dates, and location for each folder in the collection (when applicable)
x Deliverables include: (1) A fully organized, well-preserved, and research ready Historical Collection and (2) Full catalog of objects, boxes, and folders (when applicable) in Proficio Elements.
HAI estimates that processing the collection will require an estimated 2,775 hours to complete; Processing Archivists are estimated at 2,480 hours and project management is estimated at 295 hours.
*** All tasks related to Phase III shall be completed no later than June 14, 2024.
2034384v3.doc City of MB Form
EXHIBIT B
APPROVED FEE SCHEDULE – PHASE 3
The following hourly rates shall apply to any Services provided under this Amendment:
x 6HQLRU$UFKLYLVW6HQLRU&ROOHFWLRQV0DQDJHU $108.15/hr x $UFKLYLVW&ROOHFWLRQV0DQDJHU $76.63/hr
Supply costs are not to exceed $10,000.
HAI will utilize a team of four archivists/collections managers and one project manager to process and catalog the Historical Collection. HAI will first look to hire local qualified archivists from the Los Angeles area to process the collections in an effort to eliminate travel expenses. Applicants from other regions will only be considered if local applicants are unqualified.
The cost of all services detailed in Exhibit A is not to exceed $231,945 for locally sourced archivists, or not to exceed $310,000 for traveling staff.
2034384v3.doc City of MB Form
AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF MANHATTAN BEACH AND HISTORY ASSOCIATES INCORPORATED This Second Amendment (“Amendment No. 2”) to that certain agreement by and between the City of Manhattan Beach, a California municipal corporation (“City”) and History Associates Incorporated, a Maryland cor poration (“Consultant”) (collectively, the “Parties”) is hereby entered into as of March 19, 2024 (“Effective Date”).
RECITALS
A. On October 6, 2022, the City and Consultant entered into an Agreement for professional services for the Consultant to provide policy development, inventory and collection survey, and digitizing services (“Agreement”).
B. On June 6, 2023, the Parties entered into Amendment No. 1 to the Agreement to modify the Scope of Services to include processing and cataloging, extend the term, and increase the maximum compensation.
C. The Parties now desire to amend the Agreement to modify the scope of services and fee schedule and extend the term.
NOW, THEREFORE, in consideration of the Parties’ performance of the promises, covenants, and conditions stated herein, the Parties hereby agree as follows:
Section 1. Section 2 of the Agreement is hereby revised to extend the term of the Agreement through June 14, 2025, unless sooner terminated as provided in Section 12 of the Agreement.
Section 2. E
xhibit A of the Agreement is hereby amended to add the Exhibit A (Scope of Services) attached to this Amendment.
Section 3. Ex hibit B of the Agreement is hereby amended to add the Exhibit B (Approved Fee Schedule) attached to this Amendment.
Section 4. E xcept as specifically amended by this Amendment No. 2, all other provisions of the Agreement (as amended by Amendment No. 1) shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: F0F76AA4-7213-43DC-8CE0-33D6D2FBFEA6 2034384v3.doc City of MB Form
IN WITNESS THEREOF, the Parties hereto have executed this Amendment No. 2 on the day and year first shown above.
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: Mark Leyman
Title: Parks and Recreation Director
Consultant:
History Associates Incorporated,
a Maryland corporation
By:
Name: Beth Maser
Title: President and CEO HAI
DocuSign Envelope ID: F0F76AA4-7213-43DC-8CE0-33D6D2FBFEA6 3/7/2024
3/8/2024
3/12/2024
3/19/2024
3/21/2024
3/21/2024
2034384v3.doc City of MB Form
EXHIBIT A
SCOPE OF SERVICES
Phase IV: Digitization of Select Collections
Ongoing Archival Support
During Phases I and II of the City of Manhattan Beach’s Historical Collection Action Plan, HAI conducted an on-site survey and inventory of the Historical Collection. During this time, the team compiled comprehensive inventories of the object collection and archival collection. The inventories provide brief descriptions of materials, measurements, and recommendations for disposition of materials. HAI also drafted a collection policy, processing manual, and cataloging manual to aid the next steps toward full control of the collections.
Phase III of the Action Plan included processing, cataloging, and rehousing objects and archives in the collection in order to ensure continued safety and preservation of the items and enhance accessibility.
Specific tasks in Phase IV of the Action Plan include but are not limited to:
• Transportation of bound and unbound newspapers to and from National Office Systems (NOS) headquarters in Beltsville, MD – estimated at 80 boxes • Digitization of newspapers – estimated at 275 issues or 63,000 images • Digitization of photographs – estimated at 5,000 images • Metadata capture for each issue – four fields of information • Scans delivered to City of Manhattan Beach via hard drive and/or secure FTP
Ongoing archival support for the City of Manhattan Beach Historical Collection includes but is not limited to:
• Participation in Historical Collection Committee meetings • Ongoing processing and cataloging of new acquisitions • Research appointment assistance
• Exhibition planning support
All tasks related to Phase IV shall be completed no later than June 14, 2025.
DocuSign Envelope ID: F0F76AA4-7213-43DC-8CE0-33D6D2FBFEA6
2034384v3.doc City of MB Form
EXHIBIT B
APPROVED FEE SCHEDULE
Cost of Services for Phase IV: Digitization
Task Quantity Unit Price Total
Subtotal $64,106.46
Cost of Services for Ongoing Archival Support
Task Quantity Unit Price Total
Subtotal $35,651
The cost of all services detailed in Exhibit A is not-to-exceed $100,000.
Secure freight
transportation of
collection
2 $6,510.73 $13,021.46
Unbound
newspaper
processing
23,000 $0.18 $4,140
Bound newspaper
processing
40,000 $0.85 $34,000
Photograph
processing
5,000 $0.95 $4,750
Metadata
collection
6,100 $0.19 $915
HAI Archivist
assistance
1 $7,280 $7,280
Senior
Archivist/Records
Manager I
(24 hours per
month for one
year)
288 $120.00 $34,560
Travel Costs
(mileage)
45 $24.24 $1,091
DocuSign Envelope ID: F0F76AA4-7213-43DC-8CE0-33D6D2FBFEA6