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DESIGN SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is between the City of Manhattan Beach, a California mun icipal corporation (“City”) and Rubio Mendina, Architect, a sole proprietorship (“Consultant”). The date this Agreement is executed by the City Manager shall be the date this Agreement is effective (“Effective Date”). City and Consultant are sometimes refe rred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. City issued Request for Proposals No. E1290-24S on March 7, 2024, titled “Manhattan Heights Park Restroom Building Rehabilitation Feasibility Study”. Consultant submitted a proposal dated April 18, 2024, in response to the RFP.
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 as an independent contractor and Consultant desires to serve City to perform these services in accordance with the terms and conditions of this Agreement.
The Parties therefore agree as follows:
1. Consultant’s Services.
A. Scope of Services. Consultant shall perform the services described in the Scope of Services (the “Services”) for design services for the Manhattan Heights Park Restroom Building Rehabilitation Feasibility Study , 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 purpo ses 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 Rubio Medina , Architect (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 in conformance with the project timeline set forth in Exhibit A.
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D. Standard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exer cised by like professionals under similar circumstances and 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 mai ntain 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 December 31, 2025, unless sooner terminated as provided in Section 12 of this Agreement or extended. The City Manager or his/her designee may extend the term of the Agreement in writing for up to two additional one -year terms, or such other term not to exceed two years from the date of termination, pursuant to the same terms and conditions of this Agreement. If not renewed prior to the termination date, this Agreement may continue on a month -to-month basis under the same terms and conditions for a maximum period not to exceed six months or until renewed, terminated or awarded to a new consultant, whichever is less.
3. Compensation.
A. Compensation. As full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the Approved Fee Schedule attached hereto as Exhibit B. In no event shall Consultant be paid more than $74,580.00 (the “Maximum Compensation”) for such Services.
B. Expenses. City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit B. In no event shall reimbursable expenses collectively exceed the total sum of $2,500.
C. Unauthorized Services and Expenses. City will not pay for any services not specified in the Scope of Services, or reimburse for any expenses not set forth in Exhibit B, unless the City Council or the City Representative, if applicable, and the Consultant Representative authorize such services or expenses in wr iting prior to Consultant’s performance of those services or incurrence of additional exp enses. Any additional services authorized by the City Council, or (where authorized) the City Manager shall be compensated at the rates set forth in Exhibit B, or, if not specified, at a rate mutually agreed to by the Parties. Any additional expense authorized by the City Council or (where authorized) the City Manager shall be reimbursed in the amounts authorized by the City DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -3- Approved for Use 3/1/2021
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Council or City Manager. City shall make payment for additional services and expenses in accordance with Section 4 of this Agreement.
4. Method of Payment.
A. Invoices. Consultant shall submit to City an invoice, on a monthly basis, for the Services performed pursuant to this Agre ement. Invoices must be submitted to Bianca Cardenas, Associate Engineer, at [email protected] . Each invoice shall itemize the Services rendered during the billing period, hourly rates charged, if applicable, and the amount due. City shall review each invoice and notify Consultant in writing within ten Business days of receipt of any disputed invoice amounts.
B. Payment. City shall pay all undisputed invoice amounts within 30 calendar days after receipt up to the Maximum Compensation set forth in Section 3 of this Agreement. City does not pay interest on past due amounts. City shall not withhold federal payroll, state payroll or other 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 al l 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 Consu ltant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City.
6. Information and Documents.
A. Consultant covenants that all data, reports, documents, surveys, studies, drawings, plans, maps, models, photographs, discussion, or other information (collectively “Data and Documents”) developed or received by Consultant or provided for performance of this Agreement are d eemed confidential and shall not be disclosed or released by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. Consultant, its officers, employees, agents, or subcontractors shall not without written authorization from the City Manager or unless requested in writing by the City Attorney, voluntarily provide declarations, 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.
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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 any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, City’s right to review any such response does not imply or mean the right by City to control, direct or rewrite the response.
C. All Data and Documents required to be furnished to City in connection with this Agreement shall become City’s property, and City may use all or any portion of the Data submitted by Consultant as City deems appropriate. Upon completion of, or in the event of termination or suspension of this Agreement, all original Data and Documents, including computer files containing Data and Documents generated for the Services, notes, and oth er 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 desi red, 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, e mployees, 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. Indemnity for Design Professional Services. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, protect, indemnify, and hold harmless City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action , proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -5- Approved for Use 3/1/2021
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fees of accountants, attorneys, or other professionals and all costs associated therewith, and reimbursement of attorney’s fees and costs of defense (collectively “L iabilities”), whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful misconduct of Consultant, its officers, agents, servants, employees , subcontra ctors, material men, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of design professional services under this Agreement by a “design professional,” as the term is defined under California Civil Code Section 2782.8(c).
B. Other Indemnities.
1) Other than in the performance of design professional services, and to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify the Indemnitees from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Claims”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision o r by the agreement of the Parties.
Consultant shall defend the Indemnitees in any action or actions filed in connection with any Claim with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts ’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith. 2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against 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 B.2). 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnities, Consultant shall be fully DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -6- Approved for Use 3/1/2021
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responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Claims in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s subcontractor, its officers, agents, servants, employees, subcontractors, 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 Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision or by the agreement of the Parties.
C. Workers’ Compensation Acts not Limiting . Consultant’s obligations under this Section, 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.
D. Insurance Requirements not Limiting . City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, Claims, tax, assessment, penalty or interest asserted against City.
E. Survival of Terms . The indemnificat ion in 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 Insura nce as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -7- Approved for Use 3/1/2021
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accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensa tion policy is not required, but Consultant shall execute a declaration that it has no employees. 4) Professional Liability/Errors and Omissions Insurance with minimum limits of $2,000,000.00 per claim and in aggregate.
B. Acceptability of Insurers. The insurance policies required under this Section shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self- insurance shall not be considered to comply with the insurance requirements under this Section.
C. Additional Insured. The commercial general and automobile liability policies shall contain an endorsement naming City, and its elected and appointed officials, officers, employees, agents and volunteers as additional insureds. This provision shall also apply to any excess/umbrella liability policies.
D. Primary and Non-Contributing. The insurance policies required under this Section shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self -insurance maintained by City, its elected and appointed officials, officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
E. Consultant’s Waiver of Subrogation. The insurance policies required under this Section shall not prohibit Consultant and Consultant’s employees, agents or subcontractors from waiving the right of subrogation prior to a loss. Consultant h ereby 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 deductibl es or self-insured retentions with respect to City, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Coverage . Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Section during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Section is canceled or reduced in coverage or limits, Consultant shall, within two Business Days of notice from the insurer, phone, f ax 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 DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -8- Approved for Use 3/1/2021
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or, if insurance is available at a reasonable cost, City may, but h as 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.
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 t wo 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 Serv ices 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 rea sonably 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 req uired 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 DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -9- Approved for Use 3/1/2021
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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 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 material s 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 pe rformance 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 satisfac tory 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 DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -10- Approved for Use 3/1/2021
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conclusively deemed effe ctive: (a) on personal delivery, (b) on confirmed delivery by courier service during Consultant’s and City’s regular business hours, or (c) three Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
TO CITY: TO CONSULTANT:
City of Manhattan Beach Public Works Rubio Medina, Architect Attn: Public Works Director 780 Roosevelt
3621 Bell Avenue Irvine, California 92620
Manhattan Beach, California 90266
COPY TO CITY ATTORNEY:
City of Manhattan Beach
Attn: City Attorney
1400 Highland Avenue
Manhattan Beach, California 90266
16. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, ge netic 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, colo r, 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 Cons ultant 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 Ag reement. 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.
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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 Paymen t 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 a mount 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 sufficie nt 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 p rovision 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 DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -12- Approved for Use 3/1/2021
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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 Agr eement 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 prov ision 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 excl usive; 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 dra fting 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 com petent 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 DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -13- Approved for Use 3/1/2021
12100-0001\2186390v9.doc City of MB Form
of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 -14- Approved for Use 3/1/2021
12100-0001\2186390v9.doc City of MB Form
The Parties, through their duly a uthorized representatives are signing this Agreement on the date stated in the introductory clause.
City:
City of Manhattan Beach,
a California municipal corporation
By:
Name: Bruce Moe
Title: City Manager
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO FISCAL IMPACT:
By:
Name: Steve S. Charelian
Title: Finance Director
APPROVED AS TO CONTENT:
By:
Name: Erick Lee
Title: Public Works Director
Consultant:
Rubio Medina, Architect,
a Sole proprietorship
By:
Name: Rubio Medina
Title: Owner/Architect
DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 6/27/2024
6/27/2024
6/27/2024
7/1/2024
7/2/2024
7/2/2024
A-1
12100-0001\2186390v9.doc City of MB Form
EXHIBIT A
SCOPE OF SERVICES
Rubio Medina, Architect (Architect) shall provide professional engineering design services for the Manhattan Heights Park Restroom Building Rehabilitation Feasibility Study (Project) as described in the following task summaries.
Task 1: Project Management, Meetings, & Coordination
The Consultant will provide full oversight of the project scope and coordination with the City. Consultant staff shall lead all meetings with the City to initiate the project and obtain a clear understanding of the project elements involved. Consultant shall coordinate with the City’s Parks and Recreation Department often to review and consider all general site information, project needs, and building use. Progress meetings will occur at a minimum of every two weeks throughout the duration of the Project, and may be conducted by conference call, or as virtual or in-person meetings. All project meetings shall be included in the overall fee proposal, and the Consultant shall allow for an additional two meetings to be scheduled at the discretion of the City. The Consultant shall also provide project administration including necessary project meeting agendas, meeting minutes/notes, and project schedule updates.
Deliverables: Meeting agendas, minutes, and updated schedule.
Task 2: Existing Conditions and Site Analysis
A comprehensive review of the entire project site and surrounding area will be necessary to identify existing issues, concerns, and opportunities for enhancement.
Review of Records:
The City will make all available record documents accessible to the Consultant and will provide guidance and assistance necessary to obtain the information requir ed for reference. However, drawings and plans provided by the City, while known to be the most current available, are not guaranteed to depict full and complete information or to be fully accurate in any regard. Consultant shall perform the ir own investigation of utilities and existing conditions and document in final report. The Consultant shall further r esearch, obtain, and consider all available records, including, but not limited to , studies, evaluations, reports, construction documents, geotechnical reports, topographic surveys, and survey ties, City benchmarks, basis for bearings and stationing, existing utilities, City standards, and improvements within and adjacent to the project site.
A City Facility Condition Assessment Report was created in 2013 and can be found in Appendix G. it provides a thorough review of the Manhattan Heights Restroom Building (Building 6 and Restrooms) wall foundations, slab on grade, roof, wood frame, windows, exterior walls, exterior doors, partitions, interior doors, wall finishes, floor finishes, ceiling finishes, plumbing fixtures, utility service and piping, lighting, HVAC, site furnishings, pedestrian accessibility, and more. The consultant shall verify an d compare the current condition of these features in support of any proposed improvements.
DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 A-2
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Review of Utilities:
The Consultant shall review the condition of all existing utilities for recommendations and possible replacement.
Park Restroom Design Consideration:
The consultant shall research the average and heaviest park attendance to determine the adequate number of restrooms as required by all applicable codes and the City’s Building Division.
Deliverables: Existing conditions and site analysis findings.
Task 3: Develop Concepts
Conceptual and schematic designs will be prepared by the Consultant concurrently with City staff engagement and will require review of all proposed improvements with the City’s project manager prior to creation. The proposed design concepts will compare and contrast the overall advantages and disadvantages of each option, including, but not limited to, project footprint, impact on park, layout, artificial turf scope, accessibility, code requirements, legal mandates, and environmental impacts. Any inclusion or exclusion of City feedback shall be explained in the report as well.
Concept considerations may include, but are not limited to:
Reconfiguration of the existing restrooms within their current footprint; Expansion of restrooms into adjacent rooms;
Conversion of existing restrooms into single-occupancy restrooms; Creation of an additional single occupancy restroom within the building; and/or Addition of a new separate, possibly prefabricated, restroom building within the park and repurposing the existing restrooms.
Additionally, the Parks and Recreation Department has requested installation of approximately 6,200 square feet of artificial turf in the vicinity of the building. This request is due to consistently muddy conditions in this area of natural turf due to heavy use. The feasibility study shall include a section describing this request for inclusion in the future construction documents.
Final Conceptual Schemes:
Based on the chosen conceptual schemes, the A rchitect will develop final conceptual drawings to include improvements related to selected renovations but also for site-specific improvements such as the replacement of utilities and/or addition of turf.
Deliverables: Conceptual schemes, final conceptual schemes, and colored exhibits.
Task 4: Fiscal Impacts and Cost Estimates
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For each option, the Consultant will develop cost estimates and timelines for the design development, construction document production, and construction (including environmental submittals, permitting, etc.). The selected Consultant may be utilized for design development and construction d ocuments following the completion of the feasibility study ; however, thi s will depend on performance and additional contract approval, and is not guaranteed. The Consultant will compare each option to the status quo in ord er to assess pros, cons, immediate, and future expenditures. Information regarding this cost-benefit analysis shall be included as part of the report’s fiscal impacts.
Deliverables: Opinions of probable construction costs and probable project costs.
Task 5: Final Report & Recommendations
Based on information obtained during Tasks 1 through Task 4, the Consultant will prepare a report documenting and analyzing all information collected throughout the course of the Project. A final written report will be provided to the City electronically, which includes:
A presentation of the best two or three alternatives, along with all supporting data, proposed improvements, an estimated project schedule, and probable costs for design, construction, and site improvements. This includes explanation of needs for the facility, appropriate design criteria, the usage of space for the most effective concepts, and the anticipated direct and indirect impacts on park-goers, staff, and adjacent residents.
Analysis and recommendations for environmental impacts associated with the Project such as air quality, noise, hydrology, lighting , sustainability, and so forth.
As part of the report, the Consultant shall preliminarily outline all requirements of the California Environmental Quality Act (CEQA) as they relate to the Project concept considerations. At this time, the City is uncertain as to what the appropriate environmental determination might be.
An outline of all applicable local codes, policies, and regulations, as well as a list of all permits required from any and all agencies having jurisdiction over the Project. This includes the Americans with Disabilities Ac t and City building code requirements.
Identification of constraints and impacts that may be encountered during the design or construction phase.
The Consultant shall provide a draft report to the City for review and comment prior to finalization. The report and conceptual drawings are intended to facilitate and inform the City Council in providing direction towards an ultimate design. As such, the Consultant’s methodology for the options presented should be clearly outlined and easy to follow.
Deliverables: Final Report.
Task 6: Additional Services
The Architect will provide additional professional services for unforeseen services related DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876 A-4
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to the Project as necessary. For this task, the Architect will prepare a Task Proposal for the City’s approval in writing before any work is initiated. Each Task Proposal shall also contain an estimated cost for the task and a not -to-exceed amount, which shall include all labor costs and expenses.
Time for Performance
All contract work will be completed by September 30, 2024, unless otherwise authorized by City Representative.
DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876
12100-0001\2186390v9.doc City of MB Form B-1 Approved for Use 3/1/2021 CivTec RJM Design Group Cumming
TASK TASK DESCRIPTION
TASK
TOTAL
Hourly
Rate 170$
Hourly
Rate 85$
Hourly
Rate 45$ Civil Electrical Plumbing Landscape Cost 1 Project Management, Meetings, and Coordination 5,820$ 20 3,400$ 0 -$ 0 -$ 1,320$ 1,100$ 2 Existing Conditions and Site Analysis 5,770$ 10 1,700$ 0 -$ 0 -$ 1,650$ 1,320$ 1,100$ 3 Develop Concepts 28,890$ 80 13,600$ 0 -$ 0 -$ 8,140$ 4,400$ 2,750$ 4 Fiscal Impacts and Cost Estimates 7,800$ 20 3,400$ 0 -$ 0 -$ 4,400$ 5 Final Report and Recommendations 6,800$ 40 6,800$ 0 -$ 0 -$ 6 Additional Services (Unforeseen) 17,000$
Total Value 72,080$ 28,900$ -$ -$ 1,650$ 10,780$ 6,600$ 2,750$ 4,400$ Total Labor Value 72,080$
Estimated Reimbursable Expenses Budget 2,500$
Total Project Value 74,580$
RUBIO MEDINA, ARCHITECT
PBS Engineering
SUB-CONSULTANTS (INCLUDES 10% MARK UP)
Principal Drafting Support Administrative Support
EXHIBIT B
APPROVED FEE SCHEDULE
*Sub-consultants’ cost is a lump sum per task.
**Reimbursable expenses incurred by Rubio Medina, Architect, or any sub-consultant it may hire to perform services for this project, are reimbursed by the client at actual cost plus 10% to cover its ove rhead and administrative expenses. Reimbursable expenses may include fees paid to authorities having jurisdiction over the project, the expense of any additional insurance requested by the client in excess of that normally carried by the Architect or its sub-consultants, renderings, and models. The City will not reimburse the following expenses:
• Hotel, Meals and Airfare.
The City will not reimburse for lodging, meals, mileage or transportation for the Consultant or its agents. This includes no reimbursement for travel time to and from the City.
• Entertainment/Personal Services.
Under no circumstances are expenses related to entertainment (i.e., theater tickets, sporting events, etc.) or personal services (i.e., dry cleaning, haircuts, etc.) reimbursable.
• Printing and Photocopies.
All printing and photocopying costs shall be included in the not to exceed fees. • Incidental Expenses.
There will be no reimbursements for deliveries/transmittals, telephone expenses or equipment rental/purchases. • Proposal Preparation Costs.
The City will not reimburse the Consultant for any costs associated with the preparation of a proposal.
DocuSign Envelope ID: 2993931C-B100-4EF3-B251-9610DF976876