2812839v1.doc City of MB Form
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is dated September 17, 2024 (“Effective Date”) and is between the City of Manhattan Beach, a California municipal corporation (“City”) and 4L EAF, Inc., a California corporation (“Consultant”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. City issued Request for P roposals No. 1324-24 on April 23, 2024 , titled “Plan Check, Inspection , and Low Impact Development (LID) review services ”.
Consultant submitted a proposal dated May 23, 2024 in response to the RFP.
B. Consultant represents that it is fully qualified to perfo rm such services by virtue of its experience and the training, education and expertise of its principals and employees.
C. City desires to retain Consultant as an independent contractor and Consultant desires to serve City to perform these services in accorda nce 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 plan check, inspection and LID review services , attached as Exhibit A. City may request, in writing, changes in the Scope of Services to be performed. Any changes to the scope or cost of work must be in writing and mutually agreed upon by the Parties.
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 b e Marcus Johnson , Director of Southern California Operations (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 professionals under similar circumstances and in a manner reasonably satisfactory to City.
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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.
2. Term of Agreement. The term of this Agreement shall be from the Effective Date through September 17, 2027, unless sooner terminated as provided in Section 12 of this Agreement or extended. The City Manager shall have authority to extend the term of this agreement for up to two (2) additional one-year periods.
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.
B. Expenses. The amount set forth in paragraph 3.A. a bove 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 Cit y 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. 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 Consultan t 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 d oes not pay interest on past due amounts. City shall not withhold Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
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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 Calif ornia, 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 oth er 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 indep endent 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 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, v oluntarily 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. A 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 r espect to any project or property located within the City. City may, but has no obligation to, represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, City’s right to review any such response does not imply or mean the right by City to control, direct or rewrite the response.
C. All Data 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, Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
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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 affirms that it presently has no interest and shall not have any interest, direct or indirect, w hich would conflict in any manner with th e performance of the Services contemplated by this Agreement. 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 u nder 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, employ ees, 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 conn ection 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 whatsoever, 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, 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.
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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 reimbur se 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. 3) 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.
4) 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).
5) 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 th e 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.
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 deter mined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
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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 sha ll 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 lim it 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 insuranc e 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.
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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. An y 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 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 automobil e 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 wit h 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 the reon.
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 pro vide complete, certified copies of all required insurance policies to City.
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 . Procurem ent 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. 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.
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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 p erformance 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 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 da te 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, judicial orders, enemy or hostile governmental action, fire or other casualty, or other causes beyond Co nsultant’s reasonable control and not due to any act by Consultant.
14. Default.
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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 Agre ement, 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 s atisfactory 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 deem ed 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:
If to City: If to Consultant:
Attn: Ryan Heise, Building Official 4LEAF, INC.
City of Manhattan Beach Attn: Marcus Johnson
1400 Highland Avenue 5140 Birch Street, 2nd Floor
Manhattan Beach, California 90266 Newport Beach, CA 92660 Telephone: (310) 802-5525 (949) 877-9432
Email: [email protected] [email protected] With a courtesy copy to:
Quinn M. Barrow, City Attorney
1400 Highland Avenue
Manhattan Beach, California 90266
Telephone: (310) 802-5061
Email: [email protected]
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 Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
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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 u nder 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 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 Consult ant. 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.
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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 thi s 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 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 thi s 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.
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30. Attorneys’ Fees. In any litigation or other proc eeding 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, ex perts’ 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 mul tiple 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]
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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: Talyn Mirzakhanian
Title: Acting City Manager
Date:
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
Date:
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
Date:
APPROVED AS TO FISCAL IMPACT:
By:
Name: Onyx Jones
Title: Interim Finance Director
Date:
APPROVED AS TO CONTENT:
By:
Name: Ryan Heise
Title: Acting Community Development
Director
Date:
Consultant:
4LEAF, Inc.
a California corporation
By:
Name: Kevin Duggan
Title: President
By:
Name:
Title:
PROOF OF AUTHORITY TO BIND
CONTRACTING PARTY REQUIRED
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9/4/2024
9/4/2024
9/4/2024
A-1
EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
APPROVED FEE SCHEDULE
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24). Page 1 Proposed Methodology for Completing the Scope of Work May 23, 2024
PROPOSED METHODOLOGY FOR COMPLETING THE SCOPE OF WORK
Management of Resources
4LEAF has implemented three strategies that allow a cooperative process between our staff and multiple clients, providing us with the ability to scale up or scale down based upon activity. These strategies include:
• Strong Mix of Full-time and Part-Time personnel
4LEAF employs approximately 65 full-time plan review staff that include s Structural Engineers, Civil Engineers, and ICC Certified Plans Examiners. We also employ approximately 15 “as -needed” plan review personnel that we utilize when the volume of plans from our clients exceeds our capacity to complete reviews in a timely fashion. This results in the quality of our reviews remaining consistent and prevents our firm from carrying unnecessary overhead. This allows 4LEAF to control our costs and service our clients in the same fashion. The as-needed plan review personnel are typically CAL PERS retirees and/or Registered Engineers in various disciplines.
• Overtime of Plan Review Staff Performing Staff Augmentation 4LEAF services several clients by placing full-time plan review staff at the jurisdiction. When needed, 4LEAF can utilize that staff to perform off-site plan reviews and pay them an overtime rate to do so. Although it is a greater expense to 4LEAF, this is utilized to ensure we meet our contractual turn-around times.
• Technology
The work for the City of Manhattan Beach will be performed out of our Newport Beach location, however, if the workload exceeds our capacity, 4LEAF can share digital files with our 4 additional California locations (Fair Oaks, Pleasanton, San Diego, and Paradise). All plan reviews are digitized and placed in our EZPlan Review Portal where our clients and employees can access the information to perform the review. All offices are equipped with Electronic Plan Review capability including large monitors and appropriate software including the use of BlueBeam and similar technologies at the request of our clients. This use of technology is also useful for trade specific reviews (i.e. electrical, plumbing, mechanical, accessibility) in case expertise is needed for complex reviews such as complicated electrical systems, high-rises, etc.
Plan Review Services
4LEAF’s EZPlan Review
EZPlan Review is our in -house tracking software that acts as a communication tool between 4LEAF and the jurisdictions we work with. The use of EZPlan makes communication easy. This web portal allows users visualize project due dates, notes, and status updates so that projects can be followed from start to finish.
Additionally, 4LEAF provides electronically stamped and uploaded copies of approved project plans, a value which saves clients time and resources. With the use of EZPlan, 4LEAF hopes to provide a level of ease and transparency.
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24). Page 2 Proposed Methodology for Completing the Scope of Work May 23, 2024 QA/QC Review Process
Task 1 – Project Tracking Set-up
The first step of our process will be to set up the project in our system to enable 4LEAF and the City each to track the progress of the review. Our plan tracking procedures are designed to track each submittal throughout the review process and maintain accurate and comprehensive records for each submittal.
Task 2 - Complete Submittal Review
Upon receiving the plans from the City, 4LEAF will triage (preliminary plan review performed by 4LEAF plan review project lead) the submittal to verify that the submittal received is complete (i.e., all pertinent plans, calculations, reports, and other related documents) in order that we can begin our review. If the submitted package is incomplete, we will communicate with the City to discuss the deficient documents needed to proceed with our review.
Task 3 - Plan Review Assignment
After the triage process is performed and a complete package is verified, the project will be assigned to the most qualified Plans Examiner and a turnaround time will be established. We will log each application into our database the same day the plans are received to assure that they are routed in a timely manner and to allow for daily project tracking.
Task 4 - Plan Review
4LEAF will provide the project contact (Developer, Contractor, Architect, or Engineer) desired by the City with a list of any items needing correction and clarification to comply with applicable building codes, ordinances, and regulations.
A correction list will be created based on the missing codes and ordinances.
Task 5 - Quality Control
Prior to submitting the plan review correction list to the City, the designated plan review project lead will review the correction list for adherence to applicable codes and ordinances as well as for accuracy and completeness. After completion of our quality control review a correction list will be e-mailed to a designated staff member at the City or as directed by the City. The correction list and a 4LEAF transmittal form will include the following information: a description of the work, type of construc tion, occupancy group, square footage, number of floors, and sprinkler requirements.
Task 6 - Plan Review Rechecks
Plans received for rechecks will be reviewed for conformance. Our goal is to actively work with the designers to resolve all unresolved issues after our second review. If it appears that there are complicated issues that might cause a project to go beyond our second review, we will communicate directly with the designer to resolve these concerns.
Task 7 - Project Approval
Once the final plan reviews are completed and ready for approval, 4LEAF will organize the plans and supporting documents per the City processing requirements and return them to the City, along with our letter of completion.
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24). Page 3 Proposed Methodology for Completing the Scope of Work May 23, 2024 Turn-Around Times
4LEAF has a tremendous reputation for completing projects on -time and under budget. 4LEAF’s plan review team is widely recognized for quick turn-around times and prompt service. Off-site plan reviews are performed at our office, with plans transmitted by personal delivery or overnight service. The standard turn-around time is within 10 business days for residential plan reviews and within 10 days for commercial/industrial plan rev iews; however, these timeframes are negotiable based on your needs.
Type of
Plans
Transportation Initial
Review
Resubmittal
Review
Resubmittal
Review #2
Expedited
Review
Expedited
Resubmittal
*Residential < 24 Hours (pick
up & delivery) < 10 Days < 5 Days < 5 Days < 5 Days < 3 Days **Multi-
Family
< 24 Hours (pick
up & delivery) < 10 Days < 5 Days < 5 Days < 5 Days < 3 Days Commercial < 24 Hours (pick
up & delivery) < 10 Days < 5 Days < 5 Days < 5 Days < 3 Days ***Large
Commercial
> 15,000 s.f.
< 24 Hours (pick
up & delivery) Negotiable Negotiable Negotiable Negotiable Negotiable *Larger complex plan reviews can be negotiated to achieve the best possible pricing. 4LEAF has a proven track record of working with municipalities to provide expedited reviews with special discounted pricing.
Inspection Services
Periodic Inspection Services Available Next Day 4LEAF can fulfill inspection requests immediately upon request including same day. 4LEAF has a wealth of local and available inspectors ready to serve the City. In addition, 4LEAF has a proven track record of providing such services to a number of different building departments.
Part-Time Inspection Services Available Next Day 4LEAF will provide the City with part-time inspectors upon request. 4LEAF can provide part-time staff within 24 hours of request for any duration of time. 4LEAF’s Project Manager will work closely with the department to identify the right personnel and determine the appropriate work schedule.
Full-Time Inspection Services Available Two Days or Less 4LEAF can provide full-time inspectors upon request. 4LEAF provides this service regularly to many clients throughout Southern California, Northern California, the Central Valley, Central Coast, Sacramento Valley, Peninsula/South Bay, East Bay, and North Bay.
Project Specific Inspection Services Available Two Days or Less 4LEAF is often tasked with providing inspection services to large projects on behalf of municipalities. 4LEAF currently handles large-scale projects for such clients as the City of Palo Alto, City of Cupertino, etc. These projects are developer funded into a separate City account which is distributed to 4LEAF using a separate invoice and contract number. This is particularly helpful to fast paced projects looking for continuous inspection services over a short period of time.
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338
Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24). Page 4 Proposed Methodology for Completing the Scope of Work May 23, 2024 Inspection Reporting Technology
4LEAF has extensive experience working with various inspection reporting technologies, including GoFormz, which 4LEAF used for all scopes the following projects: Apple 2 Campus (~$6 Billion) , Wynn Casino (~$2.6 Billion) , San Mateo County Project Development Unit (~$1 Billion), and San Jose State University (~$600 Million). GoFormz allows every piece of information collected on a project to be accessible by all staff as every inspection report is stored securely and safely in the cloud. The information can be accessed through a user’s web account where any inspection report can be viewed, and reports can run using stored project data. With GoFormz, 4LEAF inspectors are able to leave detailed notes under the inspections and observations box and instantaneously attach pictures to reports to show the items inspected. By means of an iPad, inspectors sign reports using a mobile signature block and attached pictures of the item inspected that were taken using the iPad.
GoFormz allows every piece of information collected on a project to be accessible by all staff as every form is stored securely and safely in the cloud. The information can be accessed through a user’s web account where they can view any inspection report and run reports on project data.
The inspector will be able to leave detailed notes under the inspections and observations box and instantaneously attach pictures to the report to show the item inspected. The inspector will also be able to sign the report by hand on the iPad through the mobile signature block and pictures taken from the iPad are stored on the inspection document.
Inspection
4LEAF has a team of more than 200 ICC Certified Building Inspectors, OSHPD/DSA Inspectors of Record, Fire Personnel, and Construction Inspectors working on various contracts. 4LEAF has several staff committed to work in the Southern California area who will remain for the duration of projects to ensure we capture the goals and performance that have made our inspection system successful. 4LEAF plans to:
• Provide the City of Manhattan Beach with the depth of resources of highly qualified, experienced professionals necessary for City projects, personnel who are registered, certified, or have a license and can effectively collaborate with the City Project Managers, design team, and contractors. • Utilize innovative technology that will enhance ensure open lines of communication with the City that will interface with the City's technology systems and software platforms.
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338 Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24).
Fee Schedule
May 23, 2024
FY2024-2025 FEE SCHEDULE & BASIS OF CHARGES
FOR THE CITY OF MANHATTAN BEACH
All Rates are Subject to Basis of Charges
PLAN REVIEW COST STRUCTURE NOTES
Plan Review Percentage: 65%
(Inclusive of all disciplines except Fire and Civil which are billed on an hourly basis)
Hourly Plan Review: $135 Non-Structural Review
$155 Structural Review
Fee includes:
➢ Initial review and two (2) rechecks. Hourly
charges apply after three (3) or more
rechecks.
➢ Shipping, courier, and electronic service.
Building
Chief Building Official .........................................................................................................................$170/hour Structural Plan Review Engineer ........................................................................................................$155/hour Non-Structural Plans Examiner ..........................................................................................................$135/hour Certified Access Specialist (CASp) Inspector ......................................................................................$165/hour Certified Access Specialist (CASp) Plans Examiner .............................................................................$165/hour Senior Combination Building Inspector (Building Inspector III) .........................................................$130/hour Commercial Building Inspector (Building Inspector II) ......................................................................$115/hour Residential Building Inspector (Building Inspector I)..........................................................................$105/hour Permit Manager..................................................................................................................................$100/hour Senior Permit Technician....................................................................................................................$85/hour Permit Technician...............................................................................................................................$75/hour Clerk/Administrator............................................................................................................................$60/hour Civil Plan Review (Grading, Improvement Plans) ...............................................................................$175/hour Inspector of Record ............................................................................................................................$135/hour DSA Class 1 / OSHPD A Inspector .......................................................................................................$175/hour DSA Class 2 / OSHPD B Inspector .......................................................................................................$145/hour DSA Class 3 / OSHPD C Inspector........................................................................................................$103/hour GoFormz Software.................................................................................................................. $50/user monthly
Fire
Fire Protection Engineer (FPE)............................................................................................................$205/hour Fire Prevention Officer ......................................................................................................................$140/hour Fire Plans Examiner ............................................................................................................................$145/hour Fire Inspector II...................................................................................................................................$170/hour Fire Inspector I....................................................................................................................................$160/hour
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338 Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24).
Fee Schedule
May 23, 2024
Planning
Housing Policy Director ................................................................................................................. $205/hour Planning Director .......................................................................................................................... $180/hour Principal/Planning Manager ......................................................................................................... $165/hour Senior Planner ............................................................................................................................... $140/hour Associate Planner.......................................................................................................................... $124/hour Assistant Planner ......................................................................................................................... $105/hour Planning Technician ...................................................................................................................... $90/hour
Project Management
Project Manager .................................................................................................................................$180/hour Principal-in-Charge .............................................................................................................................$245/hour
BASIS OF CHARGES
Rates are inclusive of “tools of the trade” such as forms, telephones, and consumables. • All invoicing will be submitted monthly.
• Staff Augmentation work (excluding plan review) is subject to 4-hour minimum charges unless stated otherwise. Services billed in 4-hour increments.
• Most plan reviews will be done in 10 business days or less and 5 business days or less for re-checks. This is not inclusive of holidays or the day of the pick-up of plans. • Expedited reviews will be billed at 1.5x the plan review fee listed in the fee schedule. Return time will be within seven (7) days of receipt of the plans from the City. • Plan review of deferred submittals & revisions will be billed at the hourly rates listed. • All plan review services will be subject to a $300.00 minimum fee if percentage-based fee or 2-hour minimum charge if hourly rates apply.
• Larger complex plan reviews can be negotiated to achieve the best possible pricing. • All plan review services will be subject to 2-hour minimum fee. • All plan review services are billed on a percentage basis and includes the initial review and 2 rechecks. - Plan reviews will be billed on an hourly basis only after the initial review and 2 rechecks unless otherwise agreed upon on a case-by-case basis.
- Fire and Civil Reviews are billed on an hourly basis and are not included in our plan review percentage.
• 4LEAF assumes that these rates reflect the FY2024-2025 contract period. There will be a 3% escalation for FY2025-2026, FY2026-2027.
• Overtime and Premium time will be charged as follows:
- Regular time (work begun after 5AM or before 4PM) 1 x hourly rate - Nighttime (work begun after 4PM or before 5AM) 1.125 x hourly rate - Overtime (over 8-hour M-F or Saturdays) 1.5 x hourly rate - Overtime (over 8 hours Sat or 1st 8-hour Sun) 2 x hourly rate - Overtime (over 8 hours Sun or Holidays) 3 x hourly rate
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338 Proposal to Provide Plan Check and Inspection Services to the City of Manhattan Beach (RFP No. 1324-24).
Fee Schedule
May 23, 2024
• Overtime will only be billed with prior authorization of the Director or other designated City personnel. • All work with less than 8 hours rest between shifts will be charged the appropriate overtime rate. • Mileage driven during the course of Inspections will be charged at cost plus 20%. • Payment due on receipt. All payments over 30 days will be assessed a 1.5% interest charge. • Client shall pay attorneys’ fees, or other costs incurred in collecting delinquent amounts. • Client agrees that 4LEAF’s liability will be limited to the value of services provided. • In accordance with California’s Meal Break and Rest Break Law requirements, Client will be billed one (1) additional hour per day at the regular rate for each missed meal or rest break due to Client-directed tasks or requirements. Client should allow 4LEAF’s non-exempt, hourly employees the opportunity to take their entitled rest and meal breaks during each work shift.
Docusign Envelope ID: 622A85B8-E6CF-426B-A373-C303DB55D338