DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9
AGREEMENT WITH MOFFATT & NICHOL
FOR DESIGN PROFESSIONAL SERVICES
FOR
MARINA LAGOON SEDIMENT REMOVAL/DREDGING CONSULTANT SERVICES This Agreement, made and entered into this day of _ by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California ('CITY"), and MOFFATT & NICHOL, a corporation, ("CONSULTANT"), whose address is 2185 N.
California Blvd, Suite 500, Walnut Creek, California 94596:
RECITALS:
A. CITY desires certain Design Professional and Professional Consultant services related to sediment removal/dredging activities at Marina Lagoon, hereinafter described.
B. CITY desires to engage CONSULTANT to provide these Design Professional and Professional Consultant services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City's minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4- TERM
The services to be performed under this Agreement shall commence within two weeks of execution of this agreement and be completed on December 31, 2025. The term of this Agreement may be extended by written amendment executed by the Director of Public Works and a duly authorized representative of CONSULTANT.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee, based on verified time and materials, in an amount not to exceed $207,261, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
Cost adjustment for the second and subsequent year's annual fixed amounts will be made using annual indexes of the "Consumer Price Index for All Urban Consumers," Bay Area City Average, all items (1967=100) as published in the Monthly Review by the U.S. Department of Labor, (CPI). The annual increase in rates is not to exceed CPI or 3%, whichever is lower.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent CONSULTANT as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
Indemnity for Design Professional Services.
CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT's negligence, recklessness or willful misconduct in the performance of its design professional services under this Agreement. To the maximum extent permitted by law and Civil Code section 2782.8, CONSULTANT agrees to defend CITY, its elected and appointed officials, employees, and agents against any such claims.
Indemnity for Activities Other Than Design Professional Services.
CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONSULTANT's performance of non-design professional services under this Agreement, except for those claims arising out of CITY's sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims.
The CONSULTANT'S duty to indemnify shall survive expiration or early termination of this Agreement.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NONASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
CONSULTANT shall perform the services in accordance with that level of skill and care ordinarily exercised by similarly situated professionals performing similar services under similar circumstances.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its sub-consultants shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY's request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 To CITY: James Yang
City of San Mateo
330 W. 20th Ave
San Mateo, California 94403
To CONSULTANT: Moffatt & Nichol
Attn: Jaclyn Gnusti
2185 N. California Blvd., Suite 500
Walnut Creek, California 94596
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 IN WITNESS WHEREOF, CITY and CONSULTANT have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Viup Trived 3/12/2024
Matthew Fabry Date bilip Trived Date
Director of Public Works Vice President
APPROVED AS TO FORM ADDITIONAL CORPORATE
OFFICER
Scott Butter 3/12/2024
Linh Nguyen Date Scott Butler Date
Assistant City Attorney Vice President
Attachments:
Exhibit A: Scope of Services
Exhibit B: Payment Rates
Exhibit C: Insurance Requirements
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9
EXHIBIT A
SCOPE OF SERVICES
Consultant shall perform the following:
1) Task 1 - Sediment Characterization / Permitting Support Consultant shall perform all required coordination with San Francisco Dredged Material Management Office (DMMO) to obtain a suitability determination from the DMMO, including preparation and submittal of a sediment quality sampling plan and analysis plan (SAP), sediment field sampling, laboratory analysis in compliance with the DMMO approved SAP, and preparation of a sampling and analysis report (SAR).
Consultant shall retain a subconsultant to complete the sediment characterization work for the proposed project, including development of the SAP for submittal and approval by the DMMO.
The SAP shall follow DMMO guidance, and shall provide information for sampling and analyses of sediments to determine the general quality and potential suitability for disposal at approved landfill sites.
Consultant assumes that a single sediment core will be collected from three (3) sediment removal locations. These three (3) sediment cores shall be proportionally composited, and the composite sample shall be submitted for chemistry and biological analysis consistent with the approved SAP. Sediment samples shall be collected via the appropriate methodology.
Consultant assumes one day of field time is required for sample collection.
Bulk sediment chemical analysis and Modified Elutriate Testing shall be performed on the composite sample to determine whether sediments will represent an adverse impact during removal operations and placement at approved landfill locations.
Consultant shall provide a report documenting chemical and elutriate testing results. The report shall include the following: field sampling and laboratory procedures in accordance with DMMO requirements; suitability recommendations for disposal at an approved landfill; comparisons against previous available testing results; and chemical and elutriate data packages as appendices. If DMMO requires specific edits or revisions, Consultant shall submit a supplemental memorandum detailing responses. Consultant shall provide up to 10 copies of the report.
Consultant shall attend up to two meetings with DMMO.
Specific deliverables provided as part of this Task 1 include: 1) DMMO Work Plan summarizing anticipated schedule and deliverables; 2) Draft/Final SAP; 3) Draft/Final SAR for suitability determination; 4) permit modification requests to the existing RWQCB, USACE, BCDC and/or CDFW permits, only if necessary.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 2) Task 2 - Project Design / Bid Documents
Consultant shall prepare design drawings, technical specifications, and estimates of probable construction cost for the dredging work. Consultant's design shall consider equipment requirements, project site constraints, environmental requirements, and disposal site constraints.
Project plans shall include limits of construction, bathymetric soundings, and cross-sections detailing the dredge template and existing ground. Project plans shall include contractor staging areas, areas of avoidance, known obstructions, and pump station facilities, as necessary. The following items shall be included in the design documents: requirements for pre- and post- dredge hydrographic surveys, provisions for mobilization and demobilization, a summary of work, dredging and disposal considerations, and requirements related to environmental protection.
Consultant shall prepare design documents for 90 percent design and 100 percent design. Each design submittal shall include electronic and reproducible construction drawings, electronic and reproducible technical specifications, construction cost estimate and schedule. The construction cost estimate and schedule shall include backup details.
Consultant shall assist the City during preparation of a construction bid document by providing a summary of permit requirements, preparing a list of deliverables to be produced by the contractor, meeting with the City to review a draft of the construction bid document, reviewing the technical merits of contractor bids, and attending a maximum of one pre-bid conference and pre-bid site visit.
Specific deliverables provided as part of this Task 2 include: 1) 90 percent design submittal; 2) stamped 100 percent design submittal; 3) 90 percent submittal User Group and Design Review meeting documentation; 4) construction cost estimate; 5) summary of permit requirements and required subcontractor deliverables.
3) Task 3 - Project Management / Quality Control
Consultant shall hold a kick-off meeting within two weeks of receiving an executed contract.
Consultant shall include progress reports with progress payment requests. Consultant shall host regularly scheduled virtual progress meetings and other project review meetings. Schedules, meeting notes, deliverables, and other pertinent project information will be maintained on a SharePoint site for the City to access at any time during the project.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9
EXHIBIT B
PAYMENT RATES
RATE SCHEDULE FOR PROFESSIONAL SERVICES
Effective March 1, 2023, Until Revised
CLASSIFICATION HOURLY RATES
PROFESSIONALS Supervisory Engineer/Scientist 320.00
Senior Engineer/Scientist 299.00
Engineer/Scientist III 283.00
Engineer/Scientist II 249.00
Engineer/Scientist I 224.00
Staff Engineer/Scientist 180.00
TECHNICIANS Senior Technician 243.00
Designer 229.00
CADD II on us us in 196.00
CADDI 146.00
CLERICAL Project Controls/Word Processing 147.00
General Clerical 116.00
SPECIAL Principal Engineer/Scientist 337.00
Deposition & Trial Testimony 603.00
ARCHITECTURAL Principal Architect/Planner/Designer 341.00 SERVICES Senior Architect $ 17600 226.00
Architect
Senior Project Designer 184.00
Senior Designer 5 60 142.00
Designer 116.00
REIMBURSABLE EXPENSES (Unless Otherwise Provided in Written Agreement) Subcontracts or Outside Services Cost +10%
Reproductions - In House
Mylar Plots (B/W) $2.60/SF
Color Plots $4.70/SF
Velhun Plots (B/W) $1.60/SF
Bond Plots (B/W) $1.05/SF
Drawing Reproduction Cost +10%
Document Reproduction $0.16/sheet
- Outside Reproduction Cost +10%
Travel Company Auto Prevailing IRS
Rental Vehicle Cost
Air fare Cost
Meals and Lodging Cost
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9
EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an "occurrence" basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT's profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT's insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT's insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT's insurance and shall not contribute with it.
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DocuSign Envelope ID: C5CB9440-264D-4C5A-A320-6E930D5DE3F9 Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days' prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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