1 AGREEMENT FOR CONSULTING SERVICES
BETWEEN THE CITY OF REDONDO BEACH
AND GENSLER
THIS AGREEMENT FOR CONSULTING SERVICES (this “Agreement”) is made between the City of Redondo Beach, a Chartered Municipal Corporation (“City”) and M. Arthur Gensler Jr. & Associates, Inc., a California corporation (“Consultant” or “Contractor”).
The parties hereby agree as follows:
1. Description of Project or Scope of Services. The project description or scope of services to be provided by Consultant, and any corresponding responsibilities of City, or services required to be performed by City are set forth in Exhibit “A”.
2. Term and Time of Completion. Consultant shall commence and complete the project or services described in Exhibit “A” in accordance with the schedule set forth in Exhibit “B”.
3. Compensation. City agrees to pay Consultant for work performed in accordance with Exhibit “C”.
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GENERAL PROVISIONS
1. Independent Contractor. Consultant acknowledges, represents and warrants that Consultant is not a regular or temporary employee, officer, agent, joint venture or partner of the City, but rather an independent contractor. This agreement shall not be construed as a contract of employment. Consultant shall have no rights to any benefits which accrue to City employees unless otherwise expressly provided in this Agreement. Due to the independent contractor relationship created by this Agreement, the City shall not withhold state or federal income taxes, the reporting of which shall be Consultant’s sole responsibility.
2. Brokers. Consultant acknowledges, represents and warrants that Consultant has not hired, retained or agreed to pay any entity or person any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement.
3. Services. The project or services set forth in Exhibit “A” shall be performed in accordance with the Standard of Care to the full satisfaction and approval of the City. In the event that the project or services set forth in Exhibit “A” are itemized by price in Exhibit “C”, the City in its sole discretion may, upon notice to Consultant, delete certain items or services set forth in Exhibit “A”, in which case there shall be corresponding reduction in the amount of compensation paid to Consultant. City shall furnish Consultant to the extent available, with any City standards, details, 2 specifications and regulations applicable to the Project and necessary for the performance of Consultant’s services hereunder.
4. Changes and Extra Work. All changes and/or extra work under this Agreement shall be provided for by a subsequent written amendment executed by City and Consultant.
5. Additional Assistance. If this Agreement requires Consultant to prepare plans and specifications, Consultant shall provide assistance as necessary to resolve any questions regarding such plans and specification that may arise during the period of advertising for bids, and Consultant shall issue any necessary addenda to the plans and specifications as requested. In the event Consultant is of the opinion that City requests for addenda and assistance is outside the scope of normal services, the parties shall proceed in accordance with the changes and extra work provisions of this Agreement.
6. Professional Ability. Consultant acknowledges, represents and warrants that Consultant is skilled and able to competently provide the services hereunder, and possesses all professional licenses; certifications, and approvals necessary to engage in its occupation. City has relied upon the professional ability and training of Consultant as a material inducement to enter into this Agreement. Consultant shall perform in accordance with generally accepted professional practices and standards of Consultant’s profession (the “Standard of Care”).
7. Business License. Consultant shall obtain a Redondo Beach Business License before performing any services required under this Agreement. The failure to so obtain such license shall be a material breach of this Agreement and grounds for immediate termination by City; provided, however, that City may waive the business license requirement in writing under unusual circumstances without necessitating any modification of this Agreement to reflect such waiver.
8. Termination Without Default. Notwithstanding any provision herein to the contrary, the City may, in its sole and absolute discretion and without cause, terminate this Agreement at any time prior to completion by Consultant of the project or services hereunder, immediately upon written notice to Consultant. In the event of any such termination, Consultant shall be compensated for: (1) all authorized work satisfactorily performed prior to the effective date of termination; and (2) necessary materials or services of others ordered by Consultant for this Agreement, prior to Consultant’s receipt of notice of termination, irrespective of whether such materials or services of others have actually been delivered, and further provided that Consultant is not able to cancel such orders. Compensation for Consultant in such event shall be determined by the City in accordance with the percentage of the project or services completed by Consultant; and all of Consultant’s finished or unfinished work product through the time of the City’s last payment shall be transferred and assigned to the City. In conjunction with any termination of this Agreement, the City may, at its own expense, make copies or extract information 3 from any notes, sketches, computations, drawings, and specifications or other data, whether complete or not.
9. Termination in the Event of Default. Should either party fail to perform any of its obligations hereunder, within the time and in a manner provided or otherwise violate any of the terms of this Agreement, the the other party may immediately terminate this Agreement by giving written notice of such termination, stating the reasons for such termination. Consultant shall be compensated as provided immediately above, provided, however, in the event of termination due to Consultant’s default there shall be deducted from such amount the amount of damages, if any, sustained by the City by virtue of Consultant’s breach of this Agreement.
10.Conflict of Interest. Consultant acknowledges, represents and warrants that Consultant shall avoid all conflicts of interest (as defined under any federal, state, or local statute, rule or regulation, or at common law) with respect to this Agreement. Consultant further acknowledges, represents and warrants that Consultant has no business relationship or arrangement of any kind with any City official or employee with respect to this Agreement. Consultant acknowledges that in the event that Consultant shall be found by any judicial or administrative body to have any conflict of interest (as defined above) with respect to this Agreement, all consideration received under this Agreement shall be forfeited and returned to City forthwith. This provision shall survive the termination of this Agreement for one (1) year.
11.Indemnity Design Professional Services. In connection with its design professional services and to the maximum extent permitted by law, Consultant shall hold harmless and indemnify City, and its officials, officers, employees, agents, and designated volunteers (collectively, “Indemnitees”), with respect to any and all claims, demands, causes of action, damages, injuries, liabilities, losses, costs or expenses, including reimbursement of attorney’s fees and costs of defense, which arise out of, pertain to, or relate to in whole or in part to the negligence, recklessness, or willful misconduct of Consultant or any of its officers, employees, subcontractors, or agents in the performance of its design professional services under this Agreement.
a. Other Indemnities. In connection with any and all claims, demands, causes of action, damages, injuries, liabilities, losses, costs or expenses, including attorneys’ fees and costs of defense (collectively, “Damages” hereinafter) not covered by the foregoing paragraph, and to the maximum extent permitted by law, Consultant shall defend, hold harmless and indemnify the Indemnitees with respect to any and all Damages, which arise out of, pertain to, or relate to the acts or omissions of Consultant or any of its officers, employees, subcontractors, or agents in the performance of this Agreement, except for such loss or damage arising from the sole negligence or willful misconduct of the City. Consultant shall defend Indemnitees in any 4 action or actions filed in connection with any such Damages.
Notwithstanding the foregoing, nothing in this Section 11 shall be construed to encompass Indemnitees’ active negligence to the limited extent that this Agreement is subject to Civil Code Section 2782(b). Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or Indemnitees. This indemnification obligation shall survive this Agreement and shall not be limited by any term of any insurance policy required under this agreement.
b. Nonwaiver Rights. Indemnitees do not and shall not waive any rights that they may possess against Consultant because the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement.
c. Waiver of Right of Subrogation. Consultant, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees.
12.Insurance. Consultant shall comply with the requirements set forth in Exhibit “D”.
Insurance requirements that are waived by the City’s Risk Manager do not require amendments or revisions to this Agreement.
13.Non-Liability of Officials and Employees of the City. No official or employee of the City shall be personally liable for any default or liability under this Agreement.
14.Compliance with Laws. Consultant shall comply with all federal, state, and local laws, statutes, ordinances, rules and regulations, and the order and decrees of any courts or administrative bodies or tribunals, with respect to this Agreement, including without limitation all environmental laws, employment laws, and nondiscrimination laws.
15.Limitations upon Subcontracting and Assignment. Consultant acknowledges that the services which Consultant shall provide under this Agreement are unique, personal services which, except as otherwise provided herein, Consultant shall not assign or sublet to any other party without the prior written approval of City, which approval may be withheld in the City’s sole and absolute discretion. In the event that the City, in writing, approves any assignment or subletting of this Agreement or the retention of subcontractors by Consultant, Consultant shall provide to the City upon request copies of each and every subcontract prior to the execution thereby by Consultant and subcontractor. Any attempt by Consultant to assign any or all of its rights under this Agreement without first obtaining the City’s prior written consent shall constitute a material default under this Agreement.
The sale, assignment, transfer or other disposition, on a cumulative basis, of twenty-five percent (25%) or more of the ownership interest in Consultant or twenty-five percent (25%) or more of the voting control of Consultant (whether 5 Consultant is a corporation, limited liability company, partnership, joint venture or otherwise) shall constitute an assignment for purposes of this Agreement. Further, the involvement of Consultant or its assets in any transaction or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buyout or otherwise); whether or not a formal assignment or hypothecation of this Agreement or Consultant’s assets occurs, which reduces Consultant’s assets or net worth by twenty-five percent (25%) or more shall also constitute an assignment for purposes of this Agreement.
16.Subcontractors. Consultant shall provide properly skilled professional and technical personnel to perform any approved subcontracting duties. Consultant shall not engage the services of any person or persons now employed by the City without the prior written approval of City, which approval may be withheld in the City’s sole and absolute discretion.
17.Integration. This Agreement constitutes the entire agreement between parties concerning the subject matter hereof and supersedes any previous oral or written agreement; provided, however, that correspondence or documents exchanged between Consultant and City may be used to assist in the interpretation of the exhibits to this Agreement.
18.Amendment. This Agreement may be amended or modified only by a subsequent written amendment executed by both parties.
19.Conflicting Provisions. In the event of a conflict between the terms and conditions of this Agreement and those of any exhibit or attachment hereto, this Agreement proper shall prevail. In the event of a conflict between the terms and conditions of any two or more exhibits or attachments hereto, those prepared by the City shall prevail over those prepared by Consultant.
20.Non-Exclusivity. Notwithstanding any provision herein to the contrary, the services provided by Consultant hereunder shall be non-exclusive, and City reserves the right to employ other contractors in connection with the project.
21.Exhibits. All exhibits hereto are made a part hereof and incorporated herein by reference; provided, however, that any language in Exhibit “A” which does not pertain to the project description, proposal, or scope of services (as applicable) to be provided by Consultant, or any corresponding responsibilities of City, shall be deemed extraneous to, and not a part of, this Agreement.
22.Time of Essence. Time is of the essence of this Agreement.
23.Confidentiality. To the extent permissible under law, Consultant shall keep confidential its obligations hereunder and the information acquired during the performance of the project or services hereunder.
6 24.Third Parties. Nothing herein shall be interpreted as creating any rights or benefits in any third parties. For purposes hereof, transferees or assignees as permitted under this Agreement shall not be considered “third” parties”.
25.Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law.
Venue for any litigation or other action arising hereunder shall reside exclusively in the Superior Court of the County of Los Angeles, Southwest Judicial District.
26.Attorneys’ Fees. In the event either party to this Agreement brings any action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys’ fees (including expert witness fees) and costs.
This provision shall survive the termination of this Agreement.
27.Claims. Any claim by Consultant against City hereunder shall be subject to Government Code 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the City shall be waived if not made within six (6) months after accrual of the cause of action.
28.Interpretation. Consultant acknowledges that it has had ample opportunity to seek legal advice with respect to the negotiation of this Agreement. This Agreement shall be interpreted as if drafted by both parties.
29.Warranty. In the event that any product shall be provided to the City as part of this Agreement, Consultant warrants as follows: Consultant possesses good title to the product and the right to transfer the product to City; the product shall be delivered to the City fee from any security interest or other lien; the product meets all specifications contained herein; the product shall be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of delivery; and the product shall be fit for its intended purpose(s).
Notwithstanding the foregoing, consumable and maintenance items (such as light bulbs and batteries) shall be warranted for a period of thirty (30) days from the date of delivery. All repairs during the warranty period shall be promptly performed by Consultant, at Consultant’s expense, including shipping. Consultant shall not be liable under this warranty for an amount greater than the amount set forth in Exhibit “C” hereto. This warranty shall not apply to professional design services or any specifications therein, which are subject to the Standard of Care.
30.Severance. Any provision of this Agreement that is found invalid or unenforceable shall be deemed severed, and all remaining provisions of this Agreement shall remain enforceable to the fullest extent permitted by law.
31.Authority. City warrants and represents that upon City Council approval, the Mayor of the City of Redondo Beach is duly authorized to enter into and execute this Agreement on behalf of City. The party signing on behalf of Consultant warrants and represents that he or she is duly authorized to enter into and execute this 7 Agreement on behalf of Consultant, and shall be personally liable to City if he or she is not duly authorized to enter into and execute this Agreement on behalf of Consultant.
32.Waiver. The waiver of the City of any breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
SIGNATURES FOLLOW ON NEXT PAGE
8 IN WITNESS WHEREOF, the parties have executed this Agreement in Redondo Beach, California, as of this 17th day of January, 2023.
CITY OF REDONDO BEACH M. ARTHUR GENSLER JR. AND
ASSOCIATES, INC.,
a California corporation
___________________________ By: _____________________
William C. Brand, Mayor Name: _____________________
Title: _____________________
ATTEST: APPROVED:
____________________________ __________________________ Eleanor Manzano, CMC, City Clerk Diane Strickfaden, Risk Manager APPROVED AS TO FORM:
____________________________
Michael W. Webb, City Attorney
Nathan Kim
Principal
9 EXHIBIT “A”
PROJECT DESCRIPTION AND/OR SCOPE OF SERVICES
Gensler shall perform an educational center feasibility study and develop conceptual designs at the former site of Joe’s Crab Shack. Gensler shall act as a creative specialist, a facilitator and a strategic partner in working with the City and its stakeholders to establish a concept and vision for the ground-up building. The educational center will be an innovative learning environment and will support the education of visitors on the importance of sustaining and protecting our natural ocean resources.
PROJECT SCHEDULE AND DELIVERABLES
Task 1 - Project Kickoff Meeting (Duration: 1 day)
Within one week of authorization to proceed, the Gensler team shall organize a virtual kick-off meeting with City staff. Gensler shall use this opportunity for introductions, collect any relevant studies and information not already transmitted, and confirm objectives. Specific activities include reviewing and confirming the following:
a. Goals, objectives, and measures of success,
b. Scope of work, project schedule, and methodology,
c. Project team and individual roles/responsibilities,
d. Project management review meeting schedule,
e. Preferred communication channels,
f. Project deliverables
Meetings:
•(1) In person Kick Off Meeting
Task 2 – Site Analysis (Duration: 1 Week)
Working with information provided by the City and Gensler, Gensler’s consultant team shall develop an analysis report based on review of the existing documents and observation of the physical site. Based on findings made, Gensler shall develop a report that shall provide a narrative of existing conditions and limitations of the project based on the zoning requirements of the site. The information gathered shall inform the 10 direction of the future design and proposed solutions. Ultimately, the goal of this effort is to provide recommendations that shall maximize the development opportunity for the site to support the vision for an educational facility.
Deliverables:
•Preliminary report that includes a narrative of the existing conditions, zoning information provided by the city and site analysis diagrams based on the site visit. The report shall be provided in electronic PDF format.
Meetings:
•(1) Site Visit and Site Documentation
Task 3 – Outline Programming (Duration: 1 Week)
While the City is not in a position to establish a definitive program for the future educational center at this time, Gensler shall establish an outline program to outline possible programming solutions based on technology requirements, best practice, infrastructure requirements, site limitations, and space needs.
Key topics that will be examined within the programming workshop include:
a) Site requirements
b) Share Gensler’s findings from the Site Assessment
c)Code and best-practice space requirements, functional relationships and adjacencies
d) Anticipated technology requirements
e) Infrastructure requirements, HVAC, and special security f) Record any other qualitative requirements or aspirations.
Deliverables:
The Program report will be provided in electronic PDF format and will include the following:
•Statement of overall Project objectives
•Description of Ocean Encounter’s qualitative and quantitative project requirements
•Preliminary space program to identify possible uses, square footage, and associated functional requirements
11 Meetings:
(1) Outline Programming Workshop
(1) Program Summary Review (Zoom Mtg)
Task 4 – Site Plan / Building Feasibility Study (Duration: 4 Weeks) Gensler shall work to test multiple configurations onto the project site, testing the scale and orientation of the building and balance of parking to determine how much space can be utilized by potential programs and to illustrate opportunities for dynamic places for collaboration, engagement, and education. Gensler shall review up to three options in detail to select the plan that seems most appropriate for the specific needs, construction costs and site requirements to accommodate an education facility and other possible programs to be developed within. Options shall incorporate site analysis, design, gross square-footage, and parking distribution and layout.
Deliverables:
Gensler will develop site plan studies that include:
a) Site analysis
b) Site plan design
c) Building areas broken down by floor, gross and usable area. d) Parking distribution and layout
Meetings:
(1) Review Preliminary Site Plans (Zoom Meeting)
(1) Review Final Site Planning Strategy
Task 5 – Conceptual Design (Duration: 4 Weeks)
Based on the Outline Programming and feasibility study, Gensler shall develop design diagrams, massing models, and illustrations that depict the design concept of the project in relation to the site and programmatic opportunities. The concept design shall help to visualize the space plans and programming possibilities. The concept design shall include:
a. colored concept plans depicting possible program spatial organization b. building sections illustrating vertical distribution of the project c. curated reference images to describe function and quality of program spaces 12 d. 3-Dimensional vignettes
e. Graphic deliverables suitable for fundraising brochures, website, etc.
Deliverables:
•Concept Design package in electronic PDF format that includes the diagrams and 3—Dimensional vignettes listed above
Meetings:
(1) Meeting to review preliminary plans/options
(1) Meeting to review the Conceptual Plan and select views (Zoom Meeting) (1) Concept Design Presentation.
13 EXHIBIT “B”
SCHEDULE FOR COMPLETION
Term. The term of this Agreement shall commence on January 17, 2023 and expire April 16, 2023 (“Term”) unless otherwise terminated as herein provided.
The Project Schedule as outlined in Exhibit “A”, assigns a general timeline to the phases and tasks. The Waterfront & Economic Development Director shall have the authority to make as needed adjustments in the “Project Schedule” as required. 14 EXHIBIT “C”
COMPENSATION
Provided Consultant is not in default under this Agreement, Consultant shall be compensated as provided below.
1. Amount. The total cost for the conceptual designs and the educational center feasibility study is $76,825. This amount is depicted on the table below which includes the complete scope of work in Exhibit “A”.
2. METHOD OF PAYMENT. Consultant shall provide monthly invoices to City for approval and payment. Invoices must be adequately detailed, based on accurate records, and in a form reasonably satisfactory to City. Consultant may be required to provide back-up material upon request.
3. SCHEDULE FOR PAYMENT. City agrees to pay Consultant within thirty (30) days of receipt of monthly invoices; provided, however, that payments by City shall not exceed $76,825 and services are performed to the full satisfaction of the City.
Consultant acknowledges that the payment of services is subject to a separate reimbursement agreement with a third party and that payment may be delayed due to delay in the City’s receipt of reimbursement monies. 15 4. NOTICE. Written notices to City and Consultant shall be given by registered or certified mail, postage prepaid and addressed to or personally served on the following parties.
Consultant
M. Arthur Gensler Jr. and Associates, Inc.
500 South Figueroa Street
Los Angeles, CA 90071
Attn: Nathan Kim
City
City of Redondo Beach
Waterfront & Economic Development Department
415 Diamond Street
Redondo Beach, CA 90277
Attn: Laurie Koike
All notices, including notices of address changes, provided under this Agreement are deemed received on the third day after mailing if sent by registered or certified mail. Changes in the respective address set forth above may be made from time to time by any party upon written notice to the other party. 16 EXHIBIT “D”
INSURANCE REQUIREMENTS FOR CONSULTANTS
Without limiting Consultant’s indemnification obligations under this Agreement, Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office form number CA 0001 (ED. 1/87) covering Automobile Liability, code 1 (any auto).
Workers’ Compensation insurance as required by the State of California.
Employer’s Liability Insurance.
Minimum Limits of Insurance
Consultant shall maintain limits no less than:
General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. The general aggregate limit shall apply separately to this project.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City.
At the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers or (2) the Consultant shall provide a financial guarantee satisfactory to the City 17 guaranteeing payment of losses related investigations, claim administration and defense expenses.
Other Insurance Provisions
The general liability and automotive liability policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Endorsement:
General Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of work performed by or on behalf of the Consultant. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance, or as a separate owner’s policy.
Automobile Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant.
For any claims related to this project, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, elected and appointed officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, ahs been given to the City.
Each insurance policy shall be in effect prior to awarding the contract and each insurance policy or a successor policy shall be in effect for the duration of the project. The maintenance of proper insurance coverage is a material element of the contract and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract on the Consultant’s part.
Acceptability of Insurers
Insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A:VII and which are authorized to transact insurance business in the State of California by the Department of Insurance.
Verification of Coverage
18 Consultant shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on the City authorized forms provided with the contract specifications. Standard ISO forms which shall be subject to City approval and amended to conform to the City’s requirements may be acceptable in lieu of City authorized forms. All certificates and endorsements shall be received and approved by the City before the contract is awarded. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
Subcontractors
Consultant shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
Risk Management
Consultant acknowledges that insurance underwriting standards and practices are subject to change, and the City reserves the right to make changes to these provisions in the reasonable discretion of its Risk Manager.