AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this __ day of
_____ , 2022, by and between the City of Merced, a California Charter Municipal Corporation, whose address of record is 678 West 18th Street, Merced, California 95340, (hereinafter referred to as "City") and Kids Discovery Station, a California Non-Profit Corporation, whose address of record is 350 W. Yosemite Avenue, Merced, California 95348, (hereinafter referred to as "Consultant").
WHEREAS, City is undertaking a project to provide non-profit support to mitigate the impact of COVID-19 through American Rescue Plan Act ("ARPA") funds for Fiscal Year 2022-2023; and,
WHEREAS, Consultant represents that it possesses the professional skills to provide an educational outdoor play area in connection with said project.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants hereinafter recited, hereby agree as follows:
1. SCOPE OF SERVICES. The Consultant shall furnish the following services: Consultant shall purchase play area structures as described in Exhibit "A" attached hereto.
No additional services shall be performed by Consultant unless approved in advance in writing by the City, stating the dollar value of the services, the method of payment, and any adjustment in contract time. All such services are to be coordinated with City and the results of the work shall be monitored by the City Manager or designee. However, the means by which the work is accomplished shall be the sole responsibility of the Consultant.
2. TIME OF PERFORMANCE. All of the work outlined in the Scope of Services shall be completed in accordance with the Schedule outlined in Exhibit "A" attached hereto and incorporated herein by reference. By mutual agreement and written addendum to this Agreement, the City and the Consultant may change the requirements in said Schedule.
3. TERM OF AGREEMENT. The term of this Agreement shall
commence upon the day first above written and end on June 30, 2023.
X:\Agreemcnts\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994115x7AD00).docx
4. COMPENSATION. Payment by the City to the Consultant for actual services rendered under this Agreement shall be made upon presentation of an invoice detailing services performed under the Scope of Services, in accordance with the fee schedule set forth in Exhibit "A" attached hereto and incorporated herein by reference. The Consultant agrees to provide all services required under the Scope of Services in Exhibit "A" within the compensation amount set forth in Exhibit "A". For Consultant's services rendered under this Agreement, City shall pay Consultant the not to exceed sum of Two Hundred Thousand Dollars ($200,000.00).
5. METHOD OF PAYMENT. Compensation to Consultant shall be paid by the City after submission by Consultant of an invoice delineating the services performed.
6. RECORDS. It is understood and agreed that all plans, studies, specifications, data magnetically or otherwise recorded on computer or computer diskettes, records, files, reports, etc., in possession of the Consultant relating to the matters covered by this Agreement shall be the property of the City, and Consultant hereby agrees to deliver the same to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials including but not limited to those set forth hereinabove, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
7. CONSULTANT'S BOOKS AND RECORDS. Consultant shall
maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant pursuant to this Agreement. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the City.
8. INDEPENDENT CONTRACTOR. It is expressly understood that Consultant is an independent contractor and that its employees shall not be employees of or have any contractual relationship with the City. Consultant shall be responsible for the payment of all taxes, workers' compensation insurance and unemployment insurance. Should Consultant desire any insurance protection, the Consultant is to acquire same at its expense.
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994115x7AD00).docx 2 In the event Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, protect, defend, and hold harmless the City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
9. INDEMNITY. Consultant shall indemnify, protect, defend (with legal counsel selected by the City), save and hold City, its officers, employees, and agents, harmless from any and all claims or causes of action for death or injury to persons, or damage to property resulting from intentional or negligent acts, errors, or omissions of Consultant or Consultant's officers, employees, volunteers, and agents during performance of this Agreement; Consultant shall indemnify, protect, defend (with counsel selected by the City) save and hold City, its officers, employees and agents harmless from any and all claims or causes of action for any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct, negligent acts, or omissions of Consultant or its employees, subcontractors, or agents, or by the quality or character of Consultant's work, or resulting from the negligence of the City, its officers, employees, volunteers and agents, except for loss caused by the sole negligence or willful misconduct of the City or its officers, employees, volunteers or agents. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall survive the termination of this Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
I 0. INSURANCE. During the term of this Agreement, Consultant shall maintain in full force and effect at its own cost and expense, the following msurance coverage:
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (009941 l 5x7 AD00).docx a. Workers' Compensation Insurance. Full workers' compensation insurance shall be provided with a limit of at least One Hundred Thousand Dollars ($100,000) for any one person and as required by law, including Employer's Liability limits of $1,000,000.00 per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City. b. General Liability.
(i) Consultant shall obtain and keep in full force and effect general liability coverage at least as broad as ISO commercial general liability coverage occurrence Form CG 0001.
(ii) Consultant shall maintain limits of no less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage.
(iii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects liability arising out of work or operations performed by or on behalf of the Consultant.
(iv) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub-contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
(v) Consultant shall maintain its commercial general liability coverage for three (3) years after completion of the work and shall add an additional insured endorsement form acceptable to the City naming the City of Merced, its officers, employees, agents and volunteers for each year thereafter for at least three (3) years after completion of the work. Copies of the annual renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal. c. Automobile Insurance.
(i) Consultant shall obtain and keep in full force and effect an automobile policy of at least One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994 l 15x7 AD00).docx 4 (ii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects automobiles owned, leased, hired or borrowed by the
Consultant.
(iii) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub-contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
d. Professional Liability Insurance. Consultant shall carry professional liability insurance appropriate to Consultant's profession in the minimum amount of One Million Dollars ($1,000,000). Architects and engineers' coverage is to be endorsed to include contractual liability.
e. Qualifications of Insurer. The insurance shall be provided by an acceptable insurance provider, as determined by City, which satisfies all of the following minimum requirements:
(i) An insurance carrier admitted to do business in California and maintaining an agent for service of process within this State; and,
(ii) An insurance carrier with a current A.M. Best Rating of A:VII or better ( except for workers' compensation provided through the California State Compensation Fund).
f. Certificate of Insurance. Consultant shall complete and file with the City prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing coverage as set forth above and which shall provide that no cancellation or expiration by the insurance company will be made during the term of this Agreement, without thirty (30) days written notice to City prior to the effective date of such cancellation-including cancellation for nonpayment of premium. In addition to any other remedies City may have, City reserves the right to withhold payment if Consultant's insurance policies are not current.
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994 l I 5x7 AD00).docx 5 11. PREY AILING WAGES.
A. Labor Code Compliance. If the work performed under this Agreement falls within Labor Code Section 1 720( a)( 1) definition of a "public works" the Vendor agrees to comply with all of the applicable provisions of the Labor Code including, those provisions requiring the payment of not less than the general prevailing rate of wages. The Consultant further agrees to the penalties and forfeitures provided in said Code in the event a violation of any of the provisions occurs in the execution of this Agreement.
B. These wage rate determinations are made a specific part of this Agreement by reference pursuant to Labor Code Section 1773 .2. General Prevailing Wage Rate Determinations may be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov/.
C. After award of the Agreement, and prior to commencing work, all applicable General Prevailing Wage Rate Determinations, if applicable, are to be obtained by the Vendor from the Department of Industrial Relations. Theses wage rate determinations are to be posted by the Consultant at the job site in accordance with Section 1773 .2 of the California Labor Code.
D. Consultant agrees to include prevailing wage requirements, if applicable, in all subcontracts when the work to be performed by the subcontractor under this Agreement is a "public works" as defined in Labor Code Section 1720( a)( 1) and Labor Code Section 1771.
12. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Consultant and is based upon a determination of its unique personal competence and experience and upon its specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City.
13. TERMINATION FOR CONVENIENCE OF CITY. The City may
terminate this Agreement any time by mailing a notice in writing to Consultant that the Agreement is terminated. Said Agreement shall then be deemed terminated, and no further work shall be performed by Consultant. If the Agreement is so terminated, the Consultant shall be paid for that percentage of the phase of work actually completed, based on a pro rata portion of the compensation for said phase satisfactorily completed at the time the notice of termination is received.
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994 l l 5x7 AO00).docx 6 14. CONFORMANCE TO APPLICABLE LAWS. Consultant shall
comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances. No discrimination shall be made by Consultant in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. 1101 et seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any agency or instrumentality of the federal or state government, including the courts, impose sanctions against the City for such use of unauthorized aliens, Consultant hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith.
15. WAIVER. In the event that either City or Consultant shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other covenant, condition or obligation. Waiver shall not be deemed effective until and unless signed by the waiving party.
16. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT
AND EXHIBITS. In the event of any contradiction or inconsistency between any attached document(s) or exhibit(s) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the City are not binding upon the City unless specifically agreed to in writing, and initialed by the authorized City representative, as to each additional contractual term or condition.
17. AMBIGUITIES. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, any rule of law, including, but not limited to, Section 1654 of the Civil Code of California, or any other statutes, legal decisions, or common-law principles of similar effect, that would require interpretation of any ambiguities in this X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994115x7AD00).docx 7 Agreement against the party that drafted this Agreement is of no application and is hereby expressly waived.
18. VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this agreement shall be held exclusively in a state court in the County of Merced.
19. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto.
20. INTEGRATION. This Agreement constitutes the entire
understanding and agreement of the parties and supersedes all previous and/or contemporaneous understanding or agreement between the parties with respect to all or any part of the subject matter hereof.
21. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the parties hereto warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of their entity and has/have the authority to bind their party to the performance of its obligations hereunder.
22. COUNTERPARTS. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterparts executed by the other parties hereto are in the physical possession of the party or parties seeking enforcement thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first above written.
CITY OF MERCED
A California Charter Municipal
Corporation
BY: -------------
City Manager
X:\Agreemcnts\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (0099411 Sx7AD00).docx 8 ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
BY: --------------Assistant/Deputy City Clerk
APPROVED AS TO FORM:
City Attorney
ACCOUNT DATA:
BY: -------------
Verified by Finance Officer
{Signatures continued on next page}
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (00994 I I 5x7 AD00).docx
CONSULTANT
KIDS DISCOVERY STATION,
A California Non-Profit Corporation
BY:�
Igmrture)
1{tlcu1 ./I; a_ lo K H 1't ,v
if(yped Name)
Its: '£,ce.,C-Uf-r1
v'L 7),•LC?c.ifYL
(Title)
BY: ----------
(Signature)
(Typed Name)
Its: -----------
(Title)
Taxpayerl.D. No. g '5 - /6 (o 3 � + b
ADDRESS: 350 W. Yosemite Ave.
Merced, CA 95348
TELEPHONE: zoq-5 g 0- yo-::,. 0
FAX:
E-MA-IL_:_o..�a-llJ'\�,, 1,,1-@-14-,o/-�h-�u
�\�
X:\Agreements\City Manager\2022\PSA - Kids Discovery RE ARPA Funding FY22-23 (Redline Edits) (009941 I 5x7 AD00).docx
·:.:·•·•·
KIDS DISCOVERY STATION
The proposed project would allow KiDS to both mitigate challenges incurred by our community due to the pandemic and build up much needed services for children and families of Merced.
Mayya Tokman/Executive Director
Kids Discovery Station
INDIVIDUAL STAFF EXPERIENCE:
The project will be led by Dr. Mayya Tokman who is both an Acting Executive Director and the President of the Board of Directors of Kids Discovery Station. Dr. Tokman is the founder and the leader of the organization and all activities undertaken by KiDS since its inception. She is also a Professor of Applied Mathematics and a Faculty Director of the Ca IT each program at UC Merced. Dr. Tokman has over 30 years of experience in education, she taught extensively at the undergraduate and graduate level as well as designed and administered a number of educational programs targeting both higher education and K-12 schools. Recently Dr. Angelo Kyrilov, a Professor of Computer Science at UC Merced, has also joined as co-Executive Director of the museum. Dr. Kyrilov has already been actively engaged in development of the museum from the start and is now using his extensive expertise in technology and education to help further advance KiDS's goals.
Ms. Karrie Moua will serve as an Operations Manager for the project. Ms. Moua has been working with KiDS since January 2020 and has demonstrated herself as a highly skilled, creative and responsible individual. Ms. Moua has a BA in Communications with Concentration in Public Relations from CSU Fullerton and worked in sales and at Irvine's Pretend City Children's Museum. Ms. Moua will assist with coordination, management and administrative support of the project.
The KiDS Board of Directors will provide the guidance and oversight for the project which will benefit from the diverse expertise and experience of its members. The KiDS Board of Directors is comprised of the members of our community actively engaged in the life and development of our city and county including (in alphabetical order):
• Annissa Fragoso, owner of the Farmers Insurance Agency and President of the Board of Directors of the Hispanic Chamber of Commerce in Merced;
• Eric Gieling, financial advisor at Ameriprise and Treasurer of KiDS. • Matt Migliazzo, owner of M-MIG Construction Inc.;
• Rick Marchini, partner with the law firm of Robbins, Browning, Godwin & Marchini; • Lauren Marks-Royer, realtor with Keller Williams Westland Realty, • Mayya Tokman, Professor of Applied Mathematics at UC Merced. ·:.:·•·•·
KIDS DISCOVERY STATION
PROPOSED PROJECT & SCOPE OF SERVICES:
As outlined in the Introductory Letter the main goals of this proposal are:
• to make capital investments that will enable KiDS to implement COVID-19 prevention and mitigation tactics by developing outdoor space for educational and enrichment experiences for children and families
• to expand educational opportunities to mitigate learning loss for preschool and elementary school age children and
• to promote healthy childhood experiences through development of children and parent-focused enrichment programs with a focus on disproportionately impacted populations.
To achieve these objectives KiDS proposes to create outdoor exhibit "Our World" which will enable the museum to both (i) provide children and families with a safe environment with minimized risks of viral infection and (ii) promote active play essential for healthy child development; Below we will detail our proposed project.
Outdoor Play Space:
Rationale: The indoor area of KiDS is limited to 4,300 square feet while its potential outdoors space is over 11,000 square feet. Numerous studies since the onset of the COVID-19 pandemic showed that the spread of the COVID-19 virus is slowed significantly in the outdoors setting. On the other hand as the data we presented in the Introduction Letter indicates the pandemic had a devastating effect on our ability to fundraise and the flow of donations came to a near halt in Spring 2020 just as we were starting to plan for the outdoors exhibit. While building up the outdoors area became crucial to mitigate public health concerns, our financial ability to create the outdoors exhibit was dramatically harmed by the pandemic since just like for many nonprofits our fund raising stalled.
In addition to pandemic-related rationale for building up the outdoor space it is also important to appreciate the value of such exhibit in a broader sense of healthy active life for families in our city.
Increasing physical activity and outdoors play for children has become a crucial and challenging goal in improving life of families according to many recent studies and reports (e.g. Bento & Dias: The importance of outdoor play for young children's healthy development, 2017; Cohen et al: Playground features and physical activity in U.S. neighborhood parks, 2020).
It is a particularly difficult task in cities which experience harsh weather conditions such as high summer temperatures in Merced. While the residents of our city have the pleasure to enjoy beautiful walking paths, parks and several playgrounds in a good weather, outdoor play opportunities for children and families as the temperatures approach high marks or in the dark hours of winter months are quite limited.
Our proposal is to create a well-shaded well-lit outdoor play space that will be accessible to children and families from all over Merced all year round including the hottest summer months. Additionally, this ·:.:···•·
KIDS DISCOVERY STATION
space will include both playground structures that enable kids to engage in active physical play as well as promote learning, engagement and spark imaginations through pretend play.
Project Description: The proposed outdoor exhibit "Our World" will include the following main features:
• Play structures that allow children to engage in active physical play; • Sand play area;
• Free play space that would be utilized for a range of activities including gyrocarts riding, playing traditional games like hopscotch, ball, etc, children-led performances, and holding family-friendly events such as movie nights and concerts; • Pretend play exhibits including Fire Station which will house 2 firetrucks and a High Speed Train Station exhibit;
• Learning Garden and Farm exhibit which will facilitate both entertainment and educational activities that teach children about different aspects of agriculture and natural world.
The outdoor space on the whole will be designed to promote healthy child development as well as positive child-adult play and interactions. While exact design and size of each of these structures will be developed with contracted designers, fabricators and installers, Figure 3 presents a rough artistic renditions of some of the elements in the Our World outdoor exhibit.
Note that some of the components of this exhibit have already been funded by other sponsors. In particular, the High Speed Rail Authority provided KiDS with $45,000 grant to build the High Speed Train mock-up and Hilmar Cheese Company funded a portion of the Learning Garden and Farm exhibit with a $35,000 grant. KiDS is expecting that continuing fundraising efforts will enable construction of outdoor space elements beyond what is proposed in this grant. For example, KiDS is currently building a partnership with Merced College which will enable the museum to receive in-kind donation of landscaping services from students of the Horticulture Program at MCJC.
Additionally, KiDS has received a $75,000 grant from the Central Valley Community Foundation for this project. This grant will enable KiDS to complete all the installation and other labor-intensive components of the project.
If successful, the present proposal will bring to the City of Merced a unique in the area high-quality outdoor play space that can be utilized year-round by all families of our city irrespective of their social or economic status (see Inclusive Access Program described below), a space which will serve as both the backdrop for healthy, stimulating free play as well as organized entertainment and educational activities that promote positive interactions between children and adults and benefit the whole family. ·:.:·•·•·
KIDS DISCOVERY STATION
Figure 3:
Play structures and water & sand play area Free play space Train station Fire station
Learning Garden and Farm
Project Timeline & Deliverables: